In re McNeely

201 So. 3d 863, 2016 La. LEXIS 1818
CourtSupreme Court of Louisiana
DecidedOctober 10, 2016
DocketNO. 2016-B-1250
StatusPublished

This text of 201 So. 3d 863 (In re McNeely) 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 McNeely, 201 So. 3d 863, 2016 La. LEXIS 1818 (La. 2016).

Opinion

PER CURIAM

| ¶ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Hugh E. McNeely, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was originally admitted to the practice of law in Louisiana in 1979. In 2012, this court suspended respondent from the practice of law for a period of three years for neglecting his clients’ legal matters, failing to communicate with his clients, failing to return unearned fees, failing to return his clients’ files, and failing to cooperate with the ODC in its investigation. In re: McNeely, 12-1324 (La. 9/14/12), 98 So.3d 275 (“McNeely I”). The misconduct at issue in McNeely I occurred between 2008 and 2011.

Respondent has not yet sought reinstatement from his suspension in McNeely I. As such, he remains suspended from the practice of law. Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

| FORMAL CHARGES

In 2009, Julie Clavo hired respondent to represent her in a worker’s compensation claim against her employer. Thereafter, respondent informed her that he and defense counsel, Thomas McGaw, were working on a settlement. The day before trial, respondent and Mr. McGaw signed pleadings voluntarily dismissing Ms. Clavo’s case, which was done without Ms. Clavo’s knowledge or consent. When she learned the matter had been dismissed, Ms. Clavo attempted to contact respondent, but she was not successful. Ms. Clavo then sent respondent a letter terminating his services and requesting a copy of her file, but she heard nothing in response.

In November 2013, Ms. Clavo filed a disciplinary complaint against respondent. Respondent failed to respond to notice of the complaint, which had been twice mailed to respondent’s registered address in Saudi Arabia and e-mailed to respondent on two occasions in 2014. Respondent has not communicated with the ODC about this matter in any way.

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)(1) (failure to promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required), 1.4(a)(3) (failure to keep a client reasonably informed about the status of a matter), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

DISCIPLINARY PROCEEDINGS

In November 2014, the ODC filed formal charges against respondent. Respondent failed to answer the formal charges. Ac[865]*865cordingly, 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 committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After reviewing the ODC’s deemed admitted submission, the hearing committee made factual findings consistent with the factual allegations set forth above. Based on these facts, the committee determined that respondent violated Rules 1.3, 1.4(a)(3), 1.4(a)(4) (failure to promptly comply with reasonable requests for information), 1.5(a) (charging an unreasonable fee), 1.16(d), and 8.4(a) of the Rules of Professional Conduct.

After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction ranges from suspension to disbarment. In aggravation, the committee found a prior disciplinary record, substantial experience in the practice of law (admitted 1979), and indifference to making restitution. The committee made no mention of mitigating circumstances.

After also considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended that respondent be suspended from the practice of law for three years, with all but one year deferred, subject to a two-year period of probation.

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

| ¿Disciplinary Board Recommendation

■ After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the deemed admitted factual allegations in the formal charges and/or by the evidence submitted in support of the allegations. Based' on these facts and evidence, the board determined that the committee correctly applied the Rules of Professional Conduct, but with some exceptions. The board found that respondent violated Rule 1.4(a)(1) by dismissing Ms. Clavo’s case without her consent and knowledge, and Rule 8.1(c) by failing to respond to the ODC’s numerous requests for a response to the complaint. The board declined to adopt the committee’s finding that respondent violated Rules 1.4(a)(4) and 1.5(a) since the ODC did not include these rules in the formal charges.

The board then determined that respondent knowingly, if not intentionally, violated duties owed to his client and the legal profession. Respondent caused significant harm to Ms. Clavo by accepting her case, failing to communicate with her about the status of the matter, and then dismissing the matter without her consent. Respondent did not comply with his obligations after termination of the representation, such as returning Ms. Clavo’s file. Respondent also caused the ODC to expend additional resources by failing to cooperate with its investigation. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found substantial experience in the practice of law and indifference to making restitution. The board found that no mitigating factors are supported by the record.

Turning to the issue of an appropriate sanction, the board considered the case of Louisiana State Bar Ass’n v. Chatelain, [866]*866573 So.2d 470 (La. 1991), wherein the court observed that when a second attorney disciplinary proceeding involves conduct that occurred. during the same time period as the first proceeding, the | ^overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. The misconduct in the instant matter occurred between 2009 and 2014 and the rmisconduct in McNeely I occurred between 2008 and 2011. The board determined that, based on Chate-lain, .the.misconduct in this matter must be considered with the misconduct subject of McNeely I, in which respondent, was suspended for three years. The board concluded that, had the court considered the misconduct in .this matter with the misconduct in McNeely I, it still would have suspended respondent for three years.

Accordingly, the board recommended that respondent be adjudged guilty of additional rule violations to be considered when and if he seeks reinstatement to the practice of law.

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Related

Louisiana State Bar Ass'n v. Chatelain
573 So. 2d 470 (Supreme Court of Louisiana, 1991)
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)
In re McNeely
98 So. 3d 275 (Supreme Court of Louisiana, 2012)
In re Donnan
838 So. 2d 715 (Supreme Court of Louisiana, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
201 So. 3d 863, 2016 La. LEXIS 1818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcneely-la-2016.