In re Mitchell

145 So. 3d 305, 2014 WL 1800065, 2014 La. LEXIS 1154
CourtSupreme Court of Louisiana
DecidedMay 7, 2014
DocketNo. 2013-B-2688
StatusPublished
Cited by3 cases

This text of 145 So. 3d 305 (In re Mitchell) 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 Mitchell, 145 So. 3d 305, 2014 WL 1800065, 2014 La. LEXIS 1154 (La. 2014).

Opinions

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|! This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, David J. Mitchell, an attorney licensed to practice law in Louisiana.

[308]*308UNDERLYING FACTS

From 1978 to 2008, respondent was an associate, then a partner, in the New Orleans office of the law firm of Porteous, Hainkel, Johnson & Sai’py (“the firm”), where his practice was principally confined to the defense of insurance companies. Given the nature of his practice, respondent billed for his legal work on an hourly basis, and these bills were paid to the firm by the client. In addition, respondent’s major client, Farm Bureau Insurance Company (“Farm Bureau”), allowed him to seek reimbursement for mileage and for out-of-pocket expenses (such as tolls and parking) in connection with his travel on Farm Bureau’s legal matters. Upon incurring such expenses, respondent submitted an expense reimbursement request form to the firm’s accounting department; in turn, he received a check from the firm and the firm then recouped these amounts from Farm Bureau.

Sometime in the late 1980’s or early 1990’s, the firm became aware that respondent was submitting expense reimbursement request forms without attaching the necessary documentation to support the claim. Additionally, respondent was routinely tardy in submitting his reimbursement requests, often after the client’s | gfile in question was closed, making it more difficult for the firm to recover the expenses from its client. As a result, respondent was confronted by firm management. Respondent excused his conduct as nothing more than “sloppy recordkeeping,” an explanation which the firm accepted at that time. Nevertheless, to resolve the concerns over his expense practices, the firm required and respondent agreed that in the future he would submit all of his expense reimbursement request forms to another partner for review, and that he would refrain from signing his own expense reimbursement checks. These procedures remained in place for the duration of respondent’s employment with the firm.

In May 2008, respondent submitted a request for reimbursement of mileage charges and other expenses which he claimed to have incurred in representing Farm Bureau in December 2007, January 2008, and February 2008. The firm’s managing partner, James Thompson, reviewed the request before it was approved for payment but felt in his experience that it was unlikely the claimed travel had actually taken place. Mr. Thompson then requested copies of several previous months of travel reimbursements which had already been paid to respondent, and upon reviewing them, he became concerned that the issues he identified on the May 2008 request were not just random errors.

After discussions with the firm’s executive committee, it was determined that an “audit committee” composed of Mr. Thompson, partner Fred M. Trowbridge, Jr., and a third partner would review respondent’s expense reimbursement requests covering a three-month period, with an attempt made to cross-reference the claimed travel to respondent’s calendars, billing records, and to the individual Farm Bureau files to which the expenses had been charged. After the audit committee discovered numerous irregularities in the limited audit, a similar but more comprehensive audit was then authorized of respondent’s expense reimbursement requests dating back to 2003. Following the audit of this five-year |3period, the audit committee identified 794 requests for reimbursement of $23,212 in expenses for events that were not on respondent’s calendar, could not be documented in a file, had not taken place due to a settlement or continuance, occurred when respondent was out of the office, or had been covered by someone else in the firm. In none of these instances was there any correspond[309]*309ing charge to the client for respondent’s time as a lawyer. The audit committee also discovered that respondent had continued to sign some of his own expense reimbursement checks, despite his agreement not to do so.1

After the audit committee completed its work, respondent was given time to review all of the documentation and the client files and prepare a response. The full partnership of the firm was then summoned to a meeting in New Orleans, and again respondent was permitted to respond. During the meeting, respondent maintained that he was simply a “sloppy bookkeeper” and that if he had made any mistakes on his expense reimbursement request forms he would “make it right” to his partners. However, the firm felt this explanation was very similar to that which respondent had given years before when the same problem surfaced. The firm immediately notified Farm Bureau of what had occurred and issued a check to the insurance company for $23,212 in restitution for the questionable expense reimbursements identified in the internal audit.

Following the partners’ meeting, all of the partners were afforded the opportunity to review the work of the audit committee, and it was agreed that the partners would reconvene at a later date to consider respondent’s future with the firm. Partner Kathleen Simon decided that to be fair to respondent, prior to making any decision in this regard she should personally review all of the ^documentation that the audit committee had reviewed, including the client files and bills and respondent’s calendar. Ms. Simon made several trips to New Orleans and spent a considerable amount of time cross-checking each of the expense items that had been flagged as questionable by the audit committee, along with the related source documents. Following her review, Ms. Simon came to the conclusion that over a five-year period, respondent had indeed submitted “hundreds and hundreds and hundreds” of expense reimbursement requests for events that never happened. Similarly, partner Adrianne Baumgartner reviewed all of the files and documents pertaining to the time period initially in question (the first three to five months) and performed a “spot check” of the documentation reviewed by the audit committee for the 2003-2008 time period. In both instances, she found numerous irregularities.

By letter dated June 9, 2008, respondent reported to the ODC that he had made “administrative errors” in submitting “inadequately documented” travel reimbursement requests to the firm. On June 10, 2008, Mr. Thompson, Ms. Simon, and Ms. Baumgartner notified the ODC of “travel expense reimbursement inconsistencies involving a number of Mr. Mitchell’s litigation files.”2 In response to the partners’ complaints, respondent again suggested that he had simply neglected to provide adequate documentation for some of his expense reimbursement requests. He emphasized that he had actually incurred the expenses, however, and attributed his inadvertent “bookkeeping errors” to “submission delays” caused by the fact that he [310]*310had been submitting the reimbursement requests to the firm “weeks or months after he incurred the expenses,” rather than contemporaneously. On June 30, 2008, respondent resigned from the firm.

[.DISCIPLINARY PROCEEDINGS

In February 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 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).

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Bluebook (online)
145 So. 3d 305, 2014 WL 1800065, 2014 La. LEXIS 1154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mitchell-la-2014.