In re Nicholson

900 So. 2d 832, 2005 WL 995339
Supreme Court of Louisiana·Decided April 29, 2005·No. No. 2005-B-0359·Published

Opinion

ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

Pursuant to Supreme Court Rule XIX, § 21(A),1 the Office of Disciplinary Counsel (“ODC”) has filed a motion for reciprocal discipline against respondent, Douglas Lee Nicholson, an attorney licensed to practice law in the States of Louisiana and California, based upon discipline imposed by the Supreme Court of California.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In July 2004, respondent and the Office of the Chief Trial Counsel of the State Bar of California entered into a consent discipline proceeding. In connection with that proceeding, respondent stipulated as follows:

The Client Trust Account Matters

1. Between July 1, 2002 and July 31, 2002, respondent repeatedly issued checks drawn on his client trust account to pay for his personal or business expenses (total $2,320). Respondent deposited and maintained earned fees and personal funds in the account in order to issue these checks. Respondent stipulated that this conduct | ^constituted commingling of client funds with his own, in violation of Rule 4-100(A) of the California Rules of Professional Conduct.

[833]*8332. Over a two-week period in July 2002, respondent wrote ten checks from his client trust account that were either paid against insufficient funds or returned due to insufficient funds (total $1,270). Respondent issued these checks when he knew or should have known with reasonable diligence that there were insufficient funds in his client trust account to pay the checks. Respondent stipulated that by repeatedly issuing the NSF checks, he committed acts involving moral turpitude, dishonesty, or corruption, in violation of section 6106 of the California Business and Professions Code.

3. Over a two-week period in August 2002, respondent repeatedly issued checks drawn on his client trust account to pay for his personal expenses at the San Manuel Indian Bingo Casino (total $2,300), as well as to pay for other personal or business expenses (total $932.73). Furthermore, between July 29, 2002 and August 31, 2002, respondent repeatedly issued checks drawn on his client trust account to pay for his personal expenses at the Pechanga Casino (total $4,400). Respondent maintained earned fees and personal funds in the account in order to issue these checks. Respondent stipulated that this conduct constituted commingling of client funds with his own, in violation of Rule 4-100(A) of the California Rules of Professional Conduct.

4. Between July 29, 2002 and August 31, 2002, respondent issued a series of checks from his client trust account that were either paid against insufficient funds or returned due to insufficient funds. Several checks were presented for payment repeatedly before they were finally paid. Respondent issued these checks when he knew or should have known with reasonable diligence that there were insufficient | o,funds in his client trust account to pay the checks. Respondent stipulated that by repeatedly issuing the NSF checks, he committed acts involving moral turpitude, dishonesty, or corruption, in violation of section 6106 of the California Business and Professions Code.

6. Between August 28, 2002 and September 30, 2002, respondent repeatedly issued checks drawn on his client trust account to pay for his personal expenses at the Pechanga Casino (total $5,000). Respondent maintained earned fees and personal funds in the account in order to issue these checks. Respondent stipulated that this conduct constituted commingling of client funds with his own, in violation of Rule 4-100(A) of the California Rules of Professional Conduct.

6. Between August 28, 2002 and September 30, 2002, respondent issued a series of checks from his client trust account that were either paid against insufficient funds or returned due to insufficient funds. Several checks were presented for payment repeatedly before they were finally paid. Respondent issued these checks when he knew or should have known with reasonable diligence that there were insufficient funds in his client trust account to pay the checks. Respondent stipulated that by repeatedly issuing the NSF checks, he committed acts involving moral turpitude, dishonesty, or corruption, in violation of section 6106 of the California Business and Professions Code.

7. Respondent failed to- cooperate or participate in any way in the investigation by the State Bar of the matters set forth above. Respondent stipulated that this conduct constituted a willful violation of section 6068® of the California Business and Professions Code.

| /The Schaffstein Matter

In May 1999, Kathy Schaffstein retained respondent to represent her parents, Joseph and Frances Randazzo, in a pending legal matter. In September 2001, respon[834]*834dent borrowed $1,000 from Frances and Kathy, and -in April 2002, he borrowed $3,000 from Kathy’s brother, Frank Ran-dazzo. Respondent agreed to repay both loans within one year. He also agreed to pay Frank $300 in interest on his loan and a $200 “referral fee” for Frank’s referral of a client to respondent. Respondent stipulated that by entering into business transactions with Frances, Kathy, and Frank without complying with the requirements that (a) the transaction and its terms were fair and reasonable to the clients, (b) the transaction and its terms were fully disclosed and transmitted in .writing to the clients in a manner which should reasonably have been understood by the client, (e) the clients were advised in writing that the clients could seek the advice of an independent lawyer of the clients’ choice, (d) the clients were given a reasonable opportunity to seek that advice, and (e) the clients thereafter consented in writing to the terms of the transaction, he willfully entered into two prohibited business transactions with clients, in violation of Rule 3-300 of the California Rules of Professional Conduct. Respondent further stipulated that his agreement to pay Frank a $200 “referral fee” constituted a violation of Rule 1-320(B) of the California Rules of Professional Conduct. Finally, respondent stipulated that he failed to cooperate in the investigation by the State Bar of the Schaffstein matter.

The Casian Matter

Fiorina Casian retained respondent to represent her in a personal injury matter. Respondent hired a paralegal, Alvaro Mel-lo, to communicate with Ms. Casian during the pendency of her case, in part, because she speaks Spanish, which respondent does | ¿not speak. Respondent did not meet with Ms. Casian during the pendency of her ease, and did not take steps to prevent Mr. Mello from holding himself out as an attorney in his dealings with Ms. Casian. Respondent stipulated that he willfully failed to perform legal services with competence in the Casian matter, in violation of Rule 3-110(A) of the California Rules of Professional Conduct.

The parties acknowledged that respondent’s misconduct caused significant harm to a client, the public, or the administration of justice. In mitigation, the parties agreed that respondent has no prior record of discipline since he was admitted to the California bar in 1987, and that he was suffering from extreme emotional difficulties which expert testimony would establish were directly responsible for the misconduct.

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In re Nicholson, 900 So. 2d 832, 2005 WL 995339 (La. 2005).

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