In re Keller

898 So. 2d 319, 2005 La. LEXIS 795, 2005 WL 737425
CourtSupreme Court of Louisiana
DecidedApril 1, 2005
DocketNo. 2005-B-0135
StatusPublished

This text of 898 So. 2d 319 (In re Keller) 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 Keller, 898 So. 2d 319, 2005 La. LEXIS 795, 2005 WL 737425 (La. 2005).

Opinion

[320]*320ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Walter E. Keller, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In 1989, respondent filed a worker’s compensation proceeding on behalf of his client, Orelia Johnson. The case was initially set for trial in May '1993, but was continued at respondent’s request, due to illness. A second trial date in November 1993 was also continued, this' time without date, to allow the parties to conduct additional discovery. The suit record reveals that no further action was taken in the matter following this continuance. Accordingly, by operation of law, the case has been abandoned.

Between 1993 and 2001, Ms. Johnson periodically contacted respondent requesting an update on the status of her case. Respondent assured her he would proceed with the matter but never did so. In August 2001, Ms. Johnson filed a complaint against respondent with the ODC.

Despite receiving notice of the complaint, respondent failed to respond, necessitating the ODC to issue a subpoena to obtain his response. The day before hgiving his sworn statement to the ODC in March 2002, respondent filed a motion to reset Ms. Johnson’s case for trial.1

During the sworn statement, respondent indicated he did not respond to the complaint because he was dealing with a painful episode of gout. He also stated that after the case was continued without date in 1993, it “fell through a hole” because it was not tickled properly by his office staff. Respondent agreed to provide the ODC with a copy of Ms. Johnson’s file and an assessment of her damages within thirty days. However, despite receiving a reminder letter from the ODC, respondent failed to provide the promised information, necessitating the issuance of a second subpoena.

During the second sworn statement in April 2003, respondent informed the ODC that the clerk of court had refused to process the motion to reset the trial in Ms. Johnson’s case because of his failure to pay outstanding costs totaling $818.25. Thereafter, he took no further action and did not inform Ms. Johnson of the status of her case. Furthermore, respondent informed the ODC that he had been suffering from gout during his representation of Ms. Johnson. However, he was not diag[321]*321nosed with this disorder by a doctor until October 2001. Prior to that time, respondent had been self-diagnosing, and self-medicating this condition, which he claimed caused episodes of considerable pain but did not affect his ability to practice law.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed two counts of formal charges against respondent, alleging his conduct violated the following Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness misrepresenting a client), 1.4 (failure to communicate with a client), 3.2 (failure to make reasonable efforts to expedite litigation), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, by order of the hearing committee chair dated October 6, 2003, the factual allegations contained in the formal charges were deemed admitted and proven by clear and convincing evidence. Pursuant to Supreme Court Rule XIX, § 11(E)(3), respondent was served with the order and given twenty days to move to recall the order and demonstrate “good cause why imposition of the order would be improper or would result in a miscarriage of justice.”

On October 29, 2003, respondent filed a pleading with the disciplinary , board in which he requested the opportunity to be heard in mitigation.2 Respondent waived his right to do so at a formal hearing before the hearing committee, and instead asked that he be allowed to present his arguments in mitigation in writing. The ODC expressed no opposition to respondent’s request, which was granted by the hearing committee chair. In due course, both parties submitted written arguments and documentary evidence for the committee’s consideration.

Hearing Committee Recommendation

After reviewing the submissions. of respondent and the ODC, the hearing committee found that respondent violated a duty owed to his client and as a professional. It determined he clearly acted negligently but more probably acted 1 ¿knowingly. The committee found respondent failed to properly communicate with Ms. Johnson, neglected her case, misled her as to the status of her case, and allowed her case to become abandoned. It also found he failed to advise her of her rights resulting from his apparent legal malpractice. Furthermore, it noted respondent failed to cooperate with the ODC in its investigation of this matter.' The committee concluded respondent’s conduct caused Ms. Johnson actual harm in that she has been denied her day in court regarding the worker’s compensation matter and any malpractice claim against respondent has likely prescribed. Relying on the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence of this court, the committee determined that the baseline sanction for this misconduct is a period of suspension.

In aggravation, the committee recognized respondent’s prior disciplinary offenses,3 a pattern of misconduct, and sub[322]*322stantial experience in the practice of law (admitted 1975). As mitigating factors, the committee recognized the absence of a dishonest or selfish motive, remorse, and remoteness of prior offenses.

Considering the circumstances, the committee recommended that respondent be suspended from the practice of law for a period of one year and one day. The committee also recommended that respondent be ordered to make restitution to Ms. Johnson.

Respondent objected to the sanction recommended by the hearing committee as too harsh.

Disciplinary Board Recommendation

|sAfter reviewing this matter, the disciplinary board found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. It determined that respondent filed a worker’s compensation claim on Ms. Johnson’s behalf, but took no further action in the matter until Ms. Johnson filed a complaint against him. It also found that between 1993 and 2001, respondent disingenuously assured Ms. Johnson he would take action in her case and failed to inform her of his possible malpractice. Furthermore, the board noted respondent failed to cooperate with the ODC in its investigation of this matter.

The board determined that respondent violated duties owed to his client and as a professional. It found his misconduct was initially negligent but became knowing as time went on, and his failure to cooperate with the ODC was knowing. The board concluded the baseline sanction for this misconduct was a period of suspension. The board further adopted the aggravating and mitigating factors found by the committee.

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Cite This Page — Counsel Stack

Bluebook (online)
898 So. 2d 319, 2005 La. LEXIS 795, 2005 WL 737425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-keller-la-2005.