In re Swafford

238 So. 3d 957
CourtSupreme Court of Louisiana
DecidedMarch 23, 2018
DocketNO. 2017–B–2154
StatusPublished

This text of 238 So. 3d 957 (In re Swafford) 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 Swafford, 238 So. 3d 957 (La. 2018).

Opinion

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Gregory Swafford, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.1

UNDERLYING FACTS

Marie Smith retained respondent to complete a succession. According to Ms. Smith, respondent's fee for handling the matter was initially $5,000. Respondent then expressed an interest in purchasing part of the succession property, specifically a house located on Farragut Street in New Orleans. Thereafter, Ms. Smith and respondent agreed on a purchase price of $30,000 for the Farragut Street property, minus the $5,000 fee. Respondent failed to reduce the terms of the agreement to writing.

In July 2014, Ms. Smith filed a complaint against respondent with the ODC. In his response to the complaint, respondent claimed that he never represented Ms. Smith, nor did he purport to represent her. Respondent claimed that he was interested in purchasing the Farragut Street property in the event that title was cleared and all necessary parties were available and agreeable, but that another attorney would handle the succession work.

In contrast to these claims, Ms. Smith submitted copies of e-mail exchanges between herself and respondent that occurred in March 2014. Ms. Smith forwarded to respondent information pertaining to the heirs and decedents, including their contact information. Respondent instructed Ms. Smith to get death certificates for all of the decedents so that he could "start drafting the petitions."

On March 20, 2014, ten death certificates were hand-delivered to respondent. In a text to Ms. Smith dated June 6, 2014, respondent advised that he would have the succession documents prepared by June 13, 2014. However, respondent failed to provide proof of any action taken regarding the matter. Ultimately, Ms. Smith had another attorney complete the successions and sold the Farragut Street property in 2015.

DISCIPLINARY PROCEEDINGS

In September 2016, 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), 1.4 (failure to communicate with a client), 1.5 (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time *959after commencing the representation), 1.16(d) (obligations upon termination of the representation), and 8.4(a) (violation of the Rules of Professional Conduct).

Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing before the hearing committee.

Ms. Smith testified at the hearing that respondent presented himself as being able to "rehab, purchase, and complete" the successions for $30,000. She testified that respondent indicated that he would purchase her family's interest in the Farragut

Street property for $30,000, charge her $5,000 for legal fees to perform the successions to clear title, and provide the remaining $25,000 to the family for disbursement. Pursuant to his instructions, which are contained in e-mail communications with her, Ms. Smith acquired death certificates and delivered them to respondent, believing that he would file the successions necessary to transfer title. Based upon his representations, she believed respondent was providing legal services to her. She did not recall him mentioning that a third party would handle the successions to clear title. Ms. Smith testified that she customarily followed up her phone communications with respondent in an e-mail reflecting the conversation. There was no written purchase agreement regarding the Farragut Street property or any legal representation by respondent as a succession attorney, but there were e-mails between Ms. Smith and respondent where document collection and pleading drafting were discussed. Ms. Smith suffered a lot of duress, fearing that respondent would use the information she provided to take her property.

Respondent testified that he made the $30,000 offer for the Farragut Street property and would allocate $5,000 for the succession work. Respondent stated that the sale was conditioned upon whether the title could be cleared since there were several successions to be opened and relatives to be located. Respondent testified that attorney John Davidson, the owner of Alliance Title, was going to do the succession work. Respondent thought Ms. Smith understood that he would not be doing the succession work. When questioned about his drafting of pleadings and his requesting of documents in e-mail communications with Ms. Smith, respondent testified that he was merely the "facilitator [in] having the petitions drafted" by Mr. Davidson's office. Respondent admitted that he should have communicated better. There was no written agreement between respondent and Ms. Smith for purchase of the property or for legal services. Respondent testified that although he had performed work in succession matters, it was his policy not to personally be the succession attorney on any deal where he is the purchaser.

Hearing Committee Report

After considering the testimony presented at the hearing, as well as the other evidence in the record, the hearing committee made the following factual findings:

Respondent negligently created an attorney-client relationship with Ms. Smith by offering legal services to clear title to the Farragut Street property in association with motives to purchase the same. He negligently failed to act with reasonable diligence and promptness in representing Ms. Smith and negligently failed to take steps reasonably practicable to protect her interests by failing to give her reasonable notice of the termination of his representation.

Despite contradictory testimony on these issues, Ms. Smith had a reasonable belief that she engaged respondent as an attorney to complete the necessary successions to sell the Farragut Street property *960to him. Respondent directed Ms. Smith to gather and deliver papers to prepare and file succession pleadings. His representations indicate that he intended to perform attorney services in this matter. Upon concluding that he could not handle or "facilitate" the completion of the successions, respondent negligently failed to inform Ms. Smith of his termination of the representation. He should have informed Ms. Smith that he would be unable to complete the successions and go through with the conditional sale of the property. As respondent admitted, his actions fostered and facilitated a great misunderstanding and he should have been clearer.

Based on its factual findings, the committee determined respondent violated Rules 1.3, 1.16(d), and 8.4(a) of the Rules of Professional Conduct. Ms. Smith had a reasonable expectation and belief that respondent would perform the legal work necessary to clear title to the property. Although respondent contended that he acted merely as a real estate investor, his representations, instructions, and communications implied an intention to act in a lawyer capacity.

The committee did not find a violation of Rules 1.4 or 1.5. The interaction between respondent and Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
238 So. 3d 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-swafford-la-2018.