In re Yates

923 So. 2d 618, 2006 La. LEXIS 773, 2006 WL 584629
CourtSupreme Court of Louisiana
DecidedMarch 10, 2006
DocketNo. 2005-B-1808
StatusPublished

This text of 923 So. 2d 618 (In re Yates) 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 Yates, 923 So. 2d 618, 2006 La. LEXIS 773, 2006 WL 584629 (La. 2006).

Opinion

[619]*619ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_J¿This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James L. Yates, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

Count I — The Windham Matter

In January 1998, Kerry Windham and three other inmates were injured while being transported from Dixon Correctional Institute to Baton Rouge for medical treatment. In August 1998, respondent was hired to handle the four inmates’ personal [620]*620injury claims. Respondent filed suit on behalf of his clients in January 1999. Thereafter, respondent took no further action, and the case was dismissed. Despite receiving notice of the dismissal, respondent failed to take any remedial action or notify his clients of same.

In March 2003, Luther Windham, Kerry’s father, filed a complaint against respondent with the ODC, alleging that respondent failed to communicate with him or his son regarding the case. Despite receiving notice of the complaint via certified mail, respondent failed to provide a written response to the ODC, necessitating the issuance of a subpoena to obtain his sworn statement. During the July 24, 2003 sworn statement, respondent admitted that he had neglected his clients’ personal ^injury case. Respondent also admitted that he received the complaint filed against him and did not answer it. Respondent indicated that he was “not paying too much attention to these things like [he] used to.”

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count II — The Thompson Matter

In June 1999, Annie Laura Thompson hired respondent to represent her in an appeal of an adverse judgment against her. Ms. Thompson paid respondent $2,000 to file the appeal, plus $150 in filing fees. Thereafter, Ms. Thompson felt that respondent was neglecting her ease and not communicating with her. In December 1999, she fired him before he completed and filed the appeal. Despite not completing and filing the appeal, respondent admitted that he did not refund any portion of the fee he was paid.1 He also was only able to produce a small amount of work product and a few notes regarding Ms. Thompson’s case despite having possession of the file for some time.

The ODC alleged that respondent’s conduct violated Rule 1.16(d) (obligations upon termination of the representation) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

Following an investigation, the ODC filed two counts of formal charges against respondent. Respondent failed to answer or otherwise reply to the formal charges, 1 awhich were personally served upon him on March 23, 2004. 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 Recommendation

After considering the ODC’s submission in response to the deemed admitted order, the hearing committee determined that respondent has been ineligible to practice law since 2002 for failing to pay bar dues and the disciplinary assessment.

As to the Windham matter, the committee stated the following:

[621]*621The Committee is constrained by the deemed admitted motion that the charges brought by ODC are to be considered by the Committee as “admitted.” However, the Committee notes that Mr. Yates’ response (in the record) indicates that, in fact, he did some work on the matter, attempted to locate his incarcerated client and eventually determined that the matter had little, if any, validity.

With respect to the Thompson matter, the committee stated the following:

The complaint filed by Annie Thompson against Mr. Yates lists a number of charges. Mr. Yates’ comprehensive response correspondence effectively rebuts virtually all of Ms. Thompson’s accusations. It appears that Mr. Yates was faced with a very difficult task and a demanding client; eventually, he was terminated. However, it appears that he had obtained an extension of time to file the appellate brief and, in fact, Ms. Thompson did so pro se. The record does not reflect whether Ms. Thompson was successful with her appeal.
Again, the Committee is constrained by the deemed admitted motion; in fact, Mr. Yates admits that he refunded no portion of the fee that he was paid by Ms. Thompson to prepare the appellate brief....

| ¿¿Regarding respondent’s lack of cooperation with the ODC, the committee made the following determinations:

As evidenced by the “deemed admitted” motion, Mr. Yates failed to timely respond when served with these complaints. Nevertheless, it does appear that he eventually responded both in letter form and by providing sworn deposition testimony. Further, Mr. Yates advised ODC that he had ceased the active practice of law by mid-2002. He had failed to obtain mandatory CLE and had not paid his Bar and disciplinary dues. ODC presented no evidence that Mr. Yates was, in fact, continuing to practice law after being suspended due to these unrelated events.

The committee determined, based on the deemed admitted order, that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Furthermore, based on the deemed admitted order, the committee determined that respondent violated duties owed to his clients and the disciplinary system. He acted negligently with regard to the Wind-ham matter and in failing to refund unearned fees in the Thompson matter. The committee further determined that neither complainant suffered any harm and the legal community did not suffer serious harm.

The committee found no aggravating factors are present. As to mitigating factors, the committee found the following present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems,2 full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

Based on these findings, and because respondent has stopped practicing law for other reasons, the committee concluded that a period of suspension is “inappropriate and of little or no use in this situation.” Rather, the committee | ^recommended that if respondent reapplies to practice law, (1) he be required to obtain an additional two hours of continuing legal education in both Ethics and Professionalism prior to being [622]*622reinstated, (2) he be placed on probation for one year from the date of his reinstatement, and (3) he repay Ms. Thompson all amounts she paid him for the preparation of the appellate brief.

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Bluebook (online)
923 So. 2d 618, 2006 La. LEXIS 773, 2006 WL 584629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-yates-la-2006.