In re Polk

174 So. 3d 1131, 2015 La. LEXIS 1944, 2015 WL 5666713
CourtSupreme Court of Louisiana
DecidedSeptember 25, 2015
DocketNo. 2015-B-1408
StatusPublished

This text of 174 So. 3d 1131 (In re Polk) 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 Polk, 174 So. 3d 1131, 2015 La. LEXIS 1944, 2015 WL 5666713 (La. 2015).

Opinion

PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, William Paul Polk, II, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

In June 2010, Arthur Brogna hired respondent to handle his father’s succession. Respondent estimated the total costs for the representation would be $1,500 and requested an advance deposit of $700, which Mr. Brogna paid.

On September 10, 2010, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment. On June 7, 2011, respondent was declared ineligible to practice law for failure to satisfy the mandatory continuing legal education (“MCLE”) requirements, and on September 9, 2011, he was declared ineligible to practice law for failure to file a trust account registration statement. Respondent remained ineligible at all times pertinent to these proceedings.1 Despite his ineligible status, respondent did not withdraw from the representation and continued to represent Mr. Brogna. Respondent never informed Mr. Brogna of his ineligible status.

|2Over the next year, several e-mails were exchanged between respondent and Mr. Brogna. In those exchanges, Mr. Brogna repeatedly asked respondent for status updates regarding his case. In response to these inquiries, respondent assured Mr. Brogna that he was handling the matter and apologized for the delays. As of July 2011, the petition for possession had yet to be filed.

In August 2011, Mr. Brogna warned respondent that he intended to file a disciplinary complaint if respondent did not complete the job for which he was hired. In response, respondent indicated that he had solicited another attorney to complete the succession. Mr. Brogna, who was not previously advised of any other lawyer be[1133]*1133ing involved in his case'and did not authorize respondent to refer his case to any other lawyer, told respondent that he would hire another lawyer and asked respondent for a full refund of his fee. Despite this request, respondent failed to provide Mr. Brogna with an accounting or refund any portion of the advance deposit.

In September 2011, Mr. Brogna hired other counsel to complete the succession, paying a total of $2,484 for the new representation. The matter was completed by March 2012.

DISCIPLINARY PROCEEDINGS

In August 2013, 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 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.16(a)(1) (a lawyer shall not represent a client if the representation will result in a violation of the Rules of Professional Conduct or other law), 1.16(d) (obligations upon termination of the representation), 5.5(a) (engaging in the unauthorized practice of law), and 8.4(a) (violation of the Rules of Professional Conduct).

[ .¡Initially, respondent failed to answer the charges, and the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). Thereafter, respondent submitted a motion to withdraw the deemed admitted order, which the hearing committee chair granted. Respondent then filed an answer to the formal charges, denying any violation of the Rules of Professional Conduct.

The matter proceeded to a formal hearing before the hearing committee in November 2014. At the start of the hearing, respondent stipulated to the facts as alleged by the ODC and admitted that he violated the Rules of Professional Conduct as charged. The hearing was then limited to the issue of mitigation. ■

Mitigation Hearing

The hearing committee conducted the hearing in November 2014. The ODC introduced documentary evidence but called no witnesses to testify before the committee. Respondent testified on his own behalf and on cross-examination by the ODC.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee accepted the stipulated facts and found that the rule violations alleged in the formal charges were proven by clear and convincing evidence.

The committee noted that respondent accepted the representation of Mr. Brogna as a favor to another attorney. When respondent realized he was ineligible to practice, he felt , too embarrassed to notify his client of same. Respondent indicated that he does not have an active law practice, and thus, never attempted to maintain his MCLE requirements or make his bar dues and disciplinary assessments current. Nevertheless, respondent realizes he grievoüsly erred in not | notifying Mr. Brogna of his ineligibility. The committee was troubled by respondent’s failure to refund the fee, due to the scant evidence that his fee was earned, but was also impressed with the sincerity demonstrated by respondent during his testimony regarding the reason why he had not refunded the fee.2

[1134]*1134The committee noted that respondent’s actions caused actual harm to his client. The committee also noted that in prior cases involving the practice of law by attorneys who are ineligible to do so, the court has imposed sanctions ranging from suspension to disbarment, with the baseline sanction generally being a suspension of one year and one day. See In re: Hardy, 03-0443 (La.5/2/03), 848 So.2d 511.

In aggravation, the committee found substantial experience in the practice of law (admitted 1996). In mitigation, the committee found absence of a prior disciplinary record, absence of a dishonest or selfish motive, and remorse.

Considering respondent’s misconduct in light of the prior jurisprudence of this court, as well as the aggravating and mitigating factors, the committee determined a downward deviation from the baseline sanction to be appropriate, and recommended respondent be suspended from the practice of law for one year. The committee also recommended that during his suspension, respondent be required to make full restitution to Mr. Brogna, complete Ethics School, pay his bar dues and the disciplinary assessment, and satisfy all MCLE requirements. The committee further recommended respondent be assessed with all costs of these proceedings.

The ODC filed an objection to the hearing committee’s recommendation, arguing that the committee failed to consider respondent’s ongoing failure to pay restitution to Mr. Brogna.

\ ¿Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee was correct in accepting the facts as stipulated to by the parties. The board also determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined respondent knowingly, if not intentionally, violated duties owed to his client. Respondent caused harm to Mr. Brogna by accepting a $700 advance deposit to handle his father’s succession and failing to make any meaningful progress towards completing the matter. Respondent’s inaction caused further harm as Mr. Brogna was deprived of revenue held in suspense by various oil companies until the succession was complete. Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
174 So. 3d 1131, 2015 La. LEXIS 1944, 2015 WL 5666713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-polk-la-2015.