Louisiana State Bar Ass'n v. Amberg

553 So. 2d 448, 1989 La. LEXIS 2954, 1989 WL 149453
CourtSupreme Court of Louisiana
DecidedDecember 11, 1989
Docket87-B-1546
StatusPublished
Cited by5 cases

This text of 553 So. 2d 448 (Louisiana State Bar Ass'n v. Amberg) 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
Louisiana State Bar Ass'n v. Amberg, 553 So. 2d 448, 1989 La. LEXIS 2954, 1989 WL 149453 (La. 1989).

Opinion

553 So.2d 448 (1989)

LOUISIANA STATE BAR ASSOCIATION
v.
Joseph B. AMBERG Jr.

No. 87-B-1546.

Supreme Court of Louisiana.

December 11, 1989.
Rehearing Denied February 22, 1990.

Thomas O. Collings, Jr., Anne LaCour Neeb, New Orleans, Gerard F. Thomas, Natchitoches, Roland J. Achee, Shreveport, Robert J. Boudreau, Lake Charles, Robert M. Contois, New Orleans, Frank J. Gremillion, Baton Rouge, Carrick R. Inabnett, Monroe, Harvey Lewis, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pé, Trevor G. Bryan, Elizabeth A. Alston, New Orleans, Christine Lipsey, Baton Rouge, Edmund McCollam, Houma, for applicant.

Joseph B. Amberg, Jr., Kenner, for respondent.

DENNIS, Justice.

This is an attorney disciplinary proceeding. The Committee on Professional Responsibility of the Louisiana State Bar Association has petitioned this court to suspend the respondent, Joseph B. Amberg, Jr., from the practice of law for a period of three years.

Facts

This court finds that the facts, as set forth by the findings of the Commissioner, Edward P. Lobman, have been proven by clear and convincing evidence.

As a result of an automobile accident that occurred on December 19, 1980, Ms. Adelaide F. McKee retained Joseph B. Amberg, Jr., attorney at law, to represent her. A civil lawsuit was filed by Mr. Amberg on Ms. McKee's behalf on December 21, 1981.

During the course of the litigation Mr. Amberg learned that Claver Federal Credit Union held a chattel mortgage on Ms. McKee's vehicle, which was demolished in the December 19, 1980 accident. Mr. Amberg, on behalf of Ms. McKee, and Elmer Gibbons, attorney for Claver Federal Credit Union, entered into an agreement pursuant to which Ms. McKee agreed to assign her interest in the lawsuit filed by Mr. Amberg on her behalf to Claver Federal, which assignment was drafted by Mr. Gibbons, forwarded to Mr. Amberg on October 5, 1982, and filed of record on November 9, 1983. It was understood that Claver Federal *449 Credit Union would receive whatever amount was recovered by Ms. McKee at the conclusion of the litigation to reimburse Claver Federal part, if not all, of the money the credit union was owed on the car.

Ms. McKee's lawsuit was settled in December of 1983 for $2,000.00. After Mr. Amberg's office received the settlement draft from Travelers Insurance Company, Ms. McKee was contacted and asked to come to Mr. Amberg's office to endorse the draft so that it could be deposited. Mr. Amberg deposited the $2,000.00 Travelers draft with several other checks or drafts on December 12, 1983, into an account entitled "Amberg and Associates Limited, A Professional Law Corporation, Trust Account," number 14000650 at the First National Bank of Jefferson Parish. Ms. McKee understood that the net proceeds of the settlement, $925.50, would be sent directly to Claver Federal and that Mr. Amberg would negotiate a payment plan with Claver Federal for Ms. McKee to pay the remaining balance on her loan.

On January 16, 1984, Mr. Gibbons spoke with Mr. Amberg, at which time Mr. Amberg indicated that he was sending the money to the credit union. Having not received the funds by February 24, 1984, Mr. Gibbons wrote Mr. Amberg requesting transmission of the funds. Receiving no response, Mr. Gibbons wrote Mr. Amberg again on March 16, 1984, advising that he was proceeding with the lawsuit against Ms. McKee, and would proceed to obtain a judgment against her.

A default judgment was obtained on June 14, 1984, in favor of Claver Federal and against Ms. McKee in the amount of $4,489.87 plus interest, costs, and attorney's fees. On August 14, 1984, Claver Federal filed a Motion to Examine Judgment Debtor which was served on Ms. McKee on August 15, 1984. This proceeding was Ms. McKee's first notice that Claver Federal had not received her share of the prior settlement, and that Mr. Amberg had failed to arrange a mutually acceptable payment plan for the remaining debt.

On September 17, 1984, Ms. McKee filed a complaint with the Louisiana State Bar Association. Mr. Amberg was contacted by the Bar Association in regard to Ms. McKee's complaint in September of 1984. On March 7, 1985, Mr. Gibbons received a check from Mr. Amberg in the amount of $925.50, representing Ms. McKee's net proceeds from the settlement that was effected in December of 1983.

At various times between December 12, 1983, the date the Travelers settlement draft was deposited into Mr. Amberg's account, and March 7, 1985, the date Mr. Gibbons received Mr. Amberg's check pursuant to the assignment, the balance in Mr. Amberg's account dropped below $925.50, and reached its lowest level of $30.00 in December, 1984.

Breaches

In his testimony in his defense, Amberg admitted that his neglect had contributed to his client's being deprived of the benefit of her money for over one year, but he claimed that he had been prevented from delivering the funds initially by the acts of third persons. He conceded that no attempt had been made to transfer Ms. McKee's net settlement proceeds to her creditor at the time of settlement, but he contended that this failure was due to the defalcation of his former paralegal-secretary whose whereabouts were unknown. Although he did not dispute that he had received notification of his former employee's failure to deliver Ms. McKee's funds about one month after the settlement, he testified that he was powerless to repair the damage for over twelve months because of a combination of circumstances including a separation from his wife, her attempted suicide, and his careless handling and storage of clients' files during the relocation of his law office.

Although the Committee did not establish with clear and convincing evidence that Amberg knowingly converted his client's money for his own benefit, it is highly improbable that the lengthy deprivation could have occurred without gross negligence on his part. The combination of circumstances described by Amberg is unlikely, and he offered no evidence of the events other than his own testimony. *450 Even if we accept his uncorroborated account of his secretary-paralegal's defalcation and his misplacement of his client's file, this does not explain his prolonged failure to rectify his default in duty to his client. He was put on notice of his former employee's alleged embezzlement and failure to disburse Ms. McKee's funds a few weeks after the settlement. Despite the loss of the client's file, he easily could have determined what happened by reviewing his records with his bank. If Amberg had sufficient funds on hand at this time, as he contended, he could have paid her creditor the money due shortly after being notified of the default.

In an effort to convince this Court that he did not receive any benefit from the misapplication of Ms. McKee's funds or the delay in disbursing them, Amberg added a further set of implausible facts to his testimony. He contended that the shortage in his account reflected by the bank records was not due to a true insufficiency but was caused by the bank's failure to comply with an agreement he had made with one of its former officers. (Amberg did not call the former officer as a witness; nor could Amberg recall his last name.) Under the agreement, he testified, insurance company drafts were to be credited to his account immediately upon deposit, instead of after they had cleared as in normal banking practice. Amberg explained that the former officer agreed to give him special treatment because he had, on deposit, some $90,000.00 in his mother's name and back-up money of his own. Because the bank failed to follow the procedure agreed upon during the period of Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
553 So. 2d 448, 1989 La. LEXIS 2954, 1989 WL 149453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-state-bar-assn-v-amberg-la-1989.