In re Richard

188 So. 3d 1035, 2016 WL 1314407, 2016 La. LEXIS 778
CourtSupreme Court of Louisiana
DecidedApril 4, 2016
DocketNo. 2016-B-0076
StatusPublished
Cited by1 cases

This text of 188 So. 3d 1035 (In re Richard) 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 Richard, 188 So. 3d 1035, 2016 WL 1314407, 2016 La. LEXIS 778 (La. 2016).

Opinion

PER CURIAM.

hThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Roy Joseph Richard, Jr., an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

On October 30, 2013, respondent’s trust account did not have a sufficient balance to cover a $250 check payable to the Acadia Parish Clerk of Court. Respondent’s bank nevertheless paid the check, resulting in an overdraft in the trust account of $228.43.

The bank notified the ODC of the overdraft on November 4, 2013. Although respondent had made a deposit by that time to bring his bank account back to a positive balance, he failed to cooperate with the ODC in the disciplinary investigation.

[1036]*1036DISCIPLINARY PROCEEDINGS

In October 2014, 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 1.15(a) (safekeeping property of clients or third persons), 8.1(b) (knowing failure to respond to a lawful demand for information |2from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

Respondent failed to answer the formal charges. Accordingly, 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.

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee recommended that respondent be suspended from the practice of law for one year and one day, with no period of deferment. Thereafter, and with the consent of the ODC, respondent filed a motion to remand the matter to the committee for the sole purpose of hearing evidence on the appropriate sanction.

Mitigation Hearing

This matter proceeded to a hearing in mitigation, which was conducted by the hearing committee in July 2015. Respondent testified on his own behalf and on cross-examination by the ODC. Respondent also called two character witnesses.

In his testimony before the committee, respondent explained that he received $250 in cash from a client. He then wrote a check from his IOLTA account in that amount payable to the Acadia Parish Clerk of Court to cover court costs required for a filing also made that same day. Respondent fully expected to deposit the $250 into the account when he returned from court, but through an inadvertent oversight he neglected to make the deposit for several days, and so the check to the clerk of court caused an overdraft. As soon as respondent learned of the overdraft, he made a deposit. Respondent apologized for his inattention to the ODC’s investigation, saying that he is ashamed of his conduct. He stated that he has no |Rgood excuse for his conduct except that it was the result of his ignorance. He admitted that he should have consulted with someone to ask for help.

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 factual findings, the committee determined that respondent violated the Rules of Professional Conduct as charged.

The committee determined that respondent never intended to defraud anyone, and that no one was harmed. The check was honored by-the bank and respondent promptly covered the resulting overdraft by depositing the $250 cash. However, more serious than the excusable neglect that caused the overdraft is respondent’s failure to respond and cooperate with the ODC. In doing so, respondent caused actual harm to the disciplinary process.

In aggravation, the committee found that respondent has a prior disciplinary record1 and substantial experience in the [1037]*1037practice of law (admitted 2004). In mitigation, the committee found the absence of a dishonest or selfish motive, character or reputation, and sincere remorse.

After hearing the testimony of the witnesses and the evidence in mitigation and judging respondent’s demeanor, the committee found respondent to be sincere .in acknowledging the wrongful nature of his conduct. Considering the court’s view that the disciplinary system is designed to rehabilitate and not to punish, the committee concluded that respondent did not deserve to be sanctioned as harshly as was previously recommended. Accordingly, the committee recommended that respondent be suspended for one year and one day, with all but sixty days deferred, 'followed by a one-year period of supervised 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 in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. Based on these findings, the board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined respondent negligently violated a duty owed to his client by converting money in his trust account. The conversion did not cause any actual harm and was quickly remedied. There was the potential for harm, but it was minor given the relatively small amount of money involved. Respondent knowingly and intentionally violated his duty to the legal profession by failing to respond to and cooperate with the ODC’s investigation. This conduct caused the ODC to expend additional.resources in the investigation of this matter.

The board adopted the aggravating and mitigating factors found by the committee. Additionally, the board found the aggravating factor of bad faith obstruction of the disciplinary proceeding by ■ intentionally failing to comply with the rules or orders of the disciplinary agency.2

After reviewing prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day, with all but sixty days deferred, followed by a . one-year period of |,-unsupervised probation. The board also recommended respondent be assessed with the costs and expenses of this proceeding.

The ODC did not file an objection to the disciplinary board’s recommendation. Respondent filed a concurrence with the recommendation. In the concurrence, respondent apologized for his misconduct and for failing to cooperate with the ODC’s investigation. Respondent added that he should have been more attentive to the efforts of the disciplinary system.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we [1038]*1038act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

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In re Simmons
226 So. 3d 1102 (Supreme Court of Louisiana, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
188 So. 3d 1035, 2016 WL 1314407, 2016 La. LEXIS 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-richard-la-2016.