In re Wharton

964 So. 2d 311, 2007 La. LEXIS 1871, 2007 WL 2683772
CourtSupreme Court of Louisiana
DecidedSeptember 14, 2007
DocketNo. 2007-B-0556
StatusPublished
Cited by1 cases

This text of 964 So. 2d 311 (In re Wharton) 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 Wharton, 964 So. 2d 311, 2007 La. LEXIS 1871, 2007 WL 2683772 (La. 2007).

Opinion

[312]*312ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1972. In 2003, this court considered a proceeding involving two sets [313]*313of formal charges against respondent for misconduct that occurred between 1996 and 2000. These charges alleged that respondent failed to communicate with clients, neglected legal matters, refused to refund unearned fees, and failed to cooperate with the ODC in its investigation. After considering the record, we imposed a three-year suspension. In re: Wharton, 03-1816 (La.10/17/03), 872 So.2d 459 (“Wharton I ”). Respondent has not sought reinstatement from this suspension, and accordingly, she remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

| ¡.FORMAL CHARGES

Count I — The White Matter

In August 2002, Fredia Culpepper White paid respondent $500 to handle her mother’s succession. Ms. White obtained the documentation respondent requested and met again with respondent in July 2003. Thereafter, Ms. White’s repeated attempts to contact respondent were unsuccessful. In November 2003, Ms. White filed a complaint against respondent with the ODC, to which respondent failed to reply. In June 2004, Ms. White advised the ODC that due to respondent’s neglect, the house which was to be part of her mother’s succession may have been repossessed by the bank. Ms. White also reported that she and a relative were forced to pay another attorney $3,000 to complete the succession.

As a result of respondent’s suspension from the practice of law in Wharton I, a curator was appointed in 2004 to inventory her client files. Neither the ODC nor the curator were able to locate respondent despite numerous documented attempts to do so.

The ODC alleges that respondent’s conduct in the White matter 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(f)(6) (failure to refund an unearned fee), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II — The Gillins Matter

In April 2003, Debbie Gillins retained respondent to handle her divorce. At the time the representation commenced, Ms. Gillins paid respondent $395, with the understanding that respondent would file a petition for divorce. Two weeks later, Ms. | aGillins paid respondent an additional $425, for a total of $820. Thereafter, Ms. Gillins’ numerous attempts to contact respondent were unsuccessful. In January 2004, Ms. Gillins filed a complaint against respondent with the ODC, reporting that she had been forced to delay her plans to remarry due to respondent’s abandonment of her case. Respondent faded to reply to the complaint.

The ODC alleges that respondent’s conduct in the Gillins matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), and 8.1(c).

Count III — The Frame Matter

In June 2003, Timothy Frame retained respondent to handle a child custody matter. Mr. Frame paid respondent $1,500 for the representation. In August 2003, respondent sent Mr. Frame a copy of the petition for approval. Respondent represented to Mr. Frame that she had forwarded the petition to the Sheriffs Office for service on Mr. Frame’s former wife. Thereafter, Mr. Frame’s numerous attempts to contact respondent were unsuccessful, and he learned through direct [314]*314contact with the Sheriffs Office that no service or other activity had occurred in his matter since September 2002. In January 2004, Mr. Frame sent a certified letter to respondent terminating the representation and demanding a refund. Respondent did not claim the letter and refused to return calls or refund fees, leading Mr. Frame to file a complaint with the ODC in February 2004. Respondent failed to reply to the complaint.

The ODC alleges that respondent’s conduct in the Frame matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), 1.16(d) (obligations upon termination of the representation), and 8.1(c).

I ¿DISCIPLINARY PROCEEDINGS

In April 2005, the ODC filed three counts of formal charges against respondent, as set forth above. Respondent failed to answer or otherwise reply to 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. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

The hearing committee determined that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3). The committee also determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

Based on these findings, the committee determined that respondent knowingly and intentionally violated duties owed to her clients. Respondent failed to perform services, thereby jeopardizing her clients’ legal matters and delaying resolution of their cases. Respondent’s failure to refund any unearned portion of the fees received from her clients continues to deprive the clients of funds rightfully owed them. The baseline sanction for respondent’s misconduct is a period of suspension.

The committee found that the following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the 15rules or orders of the disciplinary agency. The committee found no mitigating factors.

Considering the court’s prior jurisprudence, the committee determined that a lengthy suspension would ordinarily be appropriate for respondent’s misconduct. However, in light of the numerous aggravating factors present, including respondent’s previous suspension in Wharton I, as well as her continuing failure to cooperate in the disciplinary investigations, the committee recommended that respondent be disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board concurred in the findings of the hearing committee that respondent violated the Rules of Professional Conduct as set forth in the formal charges, and that the charges were deemed admitted and proven by clear and convincing evidence.

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Bluebook (online)
964 So. 2d 311, 2007 La. LEXIS 1871, 2007 WL 2683772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wharton-la-2007.