In Re: Janinne Latrell Gilbert

• Court: Supreme Court of Louisiana
• Decided: September 22, 2017
• Docket: 2017-B-0524
• Status: Published

Opinion

Supreme Court of Louisiana FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #046

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 22nd day of September, 2017, are as follows:

PER CURIAM:

2017-B-0524 IN RE: JANINNE LATRELL GILBERT Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, the brief filed by the ODC, and oral argument, it is ordered that Janinne Latrell Gilbert, Louisiana Bar Roll number 30249, be and she hereby is permanently disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall 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 pay restitution of $2,000 plus legal interest to Denton Auzenne and/or to the Louisiana State Bar Association’s Client Assistance Fund, as appropriate. 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.

CRICHTON, J., additionally concurs and assigns reasons. 09/22/17

SUPREME COURT OF LOUISIANA

NO. 2017-B-0524

IN RE: JANINNE LATRELL GILBERT

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of

Disciplinary Counsel (“ODC”) against respondent, Janinne Latrell Gilbert, a

disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current matter, we find it helpful to review respondent’s

prior disciplinary history. Respondent was admitted to the practice of law in

Louisiana in 2006. In 2016, we disbarred respondent for neglecting legal matters,

failing to communicate with clients, failing to account for or refund unearned fees,

failing to properly withdraw from a representation, engaging in dishonest conduct,

and failing to cooperate with the ODC in its investigations. In re: Gilbert, 16-0044

(La. 3/4/16), 185 So. 3d 734 (“Gilbert I”). The misconduct at issue in Gilbert I

occurred between 2010 and 2014.

Against this backdrop, we now turn to a consideration of the misconduct at

issue in the present proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent under

disciplinary board docket numbers 15-DB-060 and 16-DB-044. Respondent was served with both sets of formal charges via certified mail but failed to answer.

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 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, and then consolidated by order of the disciplinary board in

October 2016. The board filed in this court a single recommendation of discipline

encompassing both sets of formal charges.

15-DB-060

In February 2015, Denton Auzenne retained respondent to institute a filiation

proceeding, for which he paid respondent a $2,000 deposit. Mr. Auzenne advised

that time was of the essence, to which respondent indicated that a petition for filiation

would be filed within one week of her receipt of DNA results. After the DNA test

was completed on March 10, 2015, Mr. Auzenne attempted to contact respondent.

He was initially not successful in reaching her, but respondent finally replied, at

which time she indicated that the petition would be filed by March 16, 2015.

However, respondent did not file the petition and Mr. Auzenne immediately

had to hire another attorney to do the work. Mr. Auzenne contacted respondent to

terminate the representation and to request an accounting and a refund of any

unearned fees. In reply, respondent told Mr. Auzenne that she had filed the petition

but admitted that she failed to submit the necessary filing fee.

After hearing nothing more from respondent, Mr. Auzenne sent respondent a

written request for an accounting, the filiation paperwork, and a refund of unearned

fees. The certified mail was received on April 16, 2015, but respondent did not

2 respond and did not comply with these requests. Furthermore, there is no indication

that the unearned and/or disputed fees were ever deposited into respondent’s trust

account. According to the clerk’s office, there is no record of the petition being filed

by respondent on Mr. Auzenne’s behalf, either with or without the filing fee.

In July 2015, Mr. Auzenne filed a complaint against respondent with the

ODC. The ODC sent notice of the complaint to three of respondent’s known

addresses via certified mail. Although the return receipt card indicates delivery on

August 14, 2015, respondent failed to provide a response to the complaint.

The ODC alleged that 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(a) (failure to communicate

with a client), 1.5(a) (charging an unreasonable fee), 1.5(f)(3) (an advance deposit

against future fees must be placed in the lawyer’s trust account), 1.5(f)(5) (failure to

refund an unearned fee), 1.16(d) (obligations upon termination of the

representation), 8.1(b) (knowing failure to respond to a lawful demand for

information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC

in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and

8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in 15-DB-060, the

hearing committee determined that the factual allegations of the formal charges were

deemed admitted and proven by clear and convincing evidence. The committee also

determined respondent knowingly and intentionally violated the Rules of

Professional Conduct as alleged in the formal charges. Based on the ABA’s

3 Standards for Imposing Lawyer Sanctions, the committee determined the baseline

sanction is disbarment.

Considering the deemed admitted facts of this case, the committee

recommended respondent be permanently disbarred. The committee also

recommended respondent be ordered to provide restitution in the amount of $2,000

to Mr. Auzenne and/or to the Louisiana State Bar Association’s Client Assistance

Fund. Finally, the committee recommended respondent be assessed with the costs

and expenses of this proceeding.

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

report and recommendation.

16-DB-044

On March 4, 2016, this court disbarred respondent in Gilbert I and mailed

notice of the judgment to respondent at her primary, secondary, and preferred

addresses. On March 28, 2016, respondent appeared before Gale J. LuQuette, a

hearing officer for the 15th Judicial District Court, Parish of Vermilion, for the

purpose of a conference in the matter of Angeles v. Angeles. Respondent appeared

as counsel for the plaintiff and the matter proceeded to a hearing.

The ODC alleged that respondent’s conduct violated the following provisions

of the Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized

practice of law), 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the

administration of justice).

After considering the ODC’s deemed admitted submission in 16-DB-044, the

committee determined respondent violated the Rules of Professional Conduct as

alleged in the formal charges. Respondent knowingly appeared in court after

4 receiving notice of her disbarment. Notice had been mailed by the clerk of the

Supreme Court to respondent’s last known address, which is the same address to

which formal charges in this matter were mailed and received by respondent. It is

also the same address from which respondent mailed her response to the complaint.

Although respondent indicated in her response that she “had no idea” she could not

practice law when she appeared before the hearing officer, the committee rejected

respondent’s defense, stating that it was “not convinced that she had not been fully

placed on notice of her ineligibility to practice.”

Considering respondent’s misconduct in light of the permanent disbarment

guidelines and the prior jurisprudence of this court, the committee recommended

respondent be permanently disbarred. The committee also recommended respondent

be assessed with all costs and expenses of this proceeding.

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

Disciplinary Board Recommendation

15-DB-060 and 16-DB-044

After reviewing these consolidated matters, the disciplinary board determined

the factual allegations of the formal charges are deemed admitted and proven by

clear and convincing evidence. The board also determined that each committee

correctly applied the Rules of Professional Conduct, with two exceptions regarding

15-DB-060. The board declined to find a violation of Rule 1.5(a), reasoning that

there is no evidence or factual allegation that the fee charged by respondent and paid

by Mr. Auzenne was unreasonable. The board also declined to find a violation of

Rule 1.5(f)(3), reasoning that a lack of evidence to show that a fee was handled

appropriately does not necessarily mean the fee was handled inappropriately.

5 The board determined respondent knowingly, if not intentionally, violated

duties owed to her client, the legal system, and the legal profession. She caused

actual harm to her client by failing to return unearned fees. She created the potential

for serious harm to the underlying proceeding and to her client by engaging in the

unauthorized practice of law. She caused the ODC to expend additional resources

by failing to cooperate in the disciplinary investigation. Based on the ABA’s

Standards for Imposing Lawyer Sanctions, the board determined the applicable

baseline sanction is disbarment.

In aggravation, the board found a prior disciplinary record, multiple offenses,

bad faith obstruction of the disciplinary proceeding by intentionally failing to

comply with the rules or orders of the disciplinary agency, vulnerability of the

victims, and indifference to making restitution. The board found no mitigating

factors are present.

After further considering this court’s prior jurisprudence addressing similar

misconduct, the board recommended a five-year extension of the time period in

which respondent can apply for readmission to the bar. The board also

recommended respondent be ordered to provide an accounting and a refund, as

necessary, to Mr. Auzenne. The board further recommended respondent be assessed

with the costs and expenses of this proceeding. Two board members dissented and

would recommend permanent disbarment.

The ODC filed an objection to the disciplinary board’s recommended sanction

as being unduly lenient. Accordingly, the case was docketed for oral argument

pursuant to Supreme Court Rule XIX, § 11(G)(1)(b). Respondent did not appear for

oral argument, nor did she file a brief in this court.

6 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.

The record in this deemed admitted matter supports a finding that respondent

neglected a legal matter, failed to communicate with a client, failed to account for

or refund an unearned fee, failed to properly withdraw from a representation,

engaged in the unauthorized practice of law, engaged in dishonest conduct, and

failed to cooperate with the ODC in its investigation. Based on these facts,

respondent has violated Rules 1.3, 1.4(a), 1.5(f)(5), 1.16(d), 5.5(a), 8.1(b), 8.1(c),

8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

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,

7 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).

We find that respondent knowingly, if not intentionally, violated duties owed

to her client, the legal system, and the legal profession, causing actual and potential

harm. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the baseline

sanction is disbarment. The aggravating factors found by the disciplinary board are

supported by the record. There are no mitigating factors present.

In their reports, the hearing committees concluded that respondent’s offenses

are so egregious that she should be permanently prohibited from applying for

readmission to the bar. The disciplinary board, on the other hand, felt that it was

sufficient to simply extend for five years the period which must elapse before

respondent may seek readmission.

We agree with the hearing committees that respondent’s conduct warrants

permanent disbarment. She failed to respect the authority of this court by practicing

law after being prohibited from doing so. She appeared in court and held herself out

as an attorney after she received notice of her disbarment. Such conduct falls under

Guideline 8 of the permanent disbarment guidelines.

Guideline 9 of the permanent disbarment guidelines is also applicable. That

guideline provides that permanent disbarment may be appropriate for instances of

serious attorney misconduct which are preceded by suspension or disbarment for

prior instances of serious attorney misconduct (defined as any misconduct which has

resulted in a suspension of more than one year). Respondent’s current misconduct,

taken as a whole, is serious attorney misconduct and was preceded by her disbarment

in Gilbert I.

8 Respondent’s long history of misconduct clearly demonstrates that she lacks

the fitness to engage in the practice of law in this state. In the face of this

indisputable evidence of a fundamental lack of moral character and fitness, we can

conceive of no circumstance under which we would ever grant readmission to

respondent. Therefore, she must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committees

and disciplinary board, and considering the record, the brief filed by the ODC, and

oral argument, it is ordered that Janinne Latrell Gilbert, Louisiana Bar Roll number

30249, be and she hereby is permanently disbarred. Her name shall be stricken from

the roll of attorneys and her license to practice law in the State of Louisiana shall 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 pay restitution of $2,000 plus legal

interest to Denton Auzenne and/or to the Louisiana State Bar Association’s Client

Assistance Fund, as appropriate. 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.

9 09/22/17

CRICHTON, J., additionally concurs and assigns reasons:

I agree with this Court’s decision to permanently disbar Respondent. This

Court’s per curiam exhaustively described the stunning facts underlying this case. I

write separately because one aspect merits spotlighting—Respondent’s utter failure

to participate in the disciplinary matter, including Respondent’s failure to cooperate

with the disciplinary agency, file briefs, and appear before this Court for oral

argument. As I have noted before, I believe such a lack of respect for the profession

can support the sanction of permanent disbarment. See, e.g., In re Fahrenholtz, 2017-

0261, p. 2 (La. 4/7/17), 215 So.3d 204, 209–10 (Crichton, J., dissenting and would

impose permanent disbarment) (“[R]espondent blatantly refused to cooperate with

ODC in violation of Rule 8.4(a), both in this case and [a previous case] . . . . [I]t is

difficult to imagine how respondent could have been any more uncooperative.”); In

re Mendy, 2016-0456, p. 11 (La. 10/19/16), 217 So.3d 260, 266 (Crichton, J.,

dissenting and would impose permanent disbarment) (“Respondent’s evident lack of

interest in defending these serious charges against him, coupled with his past

sanctions, has no place in this noble profession.”).