Louisiana State Bar Ass'n v. Mitchell

481 So. 2d 583, 1986 La. LEXIS 5478
CourtSupreme Court of Louisiana
DecidedJanuary 13, 1986
DocketNo. 85-B-0206
StatusPublished
Cited by2 cases

This text of 481 So. 2d 583 (Louisiana State Bar Ass'n v. Mitchell) 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. Mitchell, 481 So. 2d 583, 1986 La. LEXIS 5478 (La. 1986).

Opinion

BLANCHE, Justice.

All complaints of alleged unprofessional conduct are received and investigated by the Louisiana State Bar Association’s Committee on Professional Responsibility. Louisiana Bar Association Articles of Incorporation, art. 15, § 3. Having received a number of complaints against respondent, Alfred E. Mitchell, the committee launched an investigation. Pursuant to this investigation the Bar Association, acting through its Committee on Professional Responsibility, initiated disciplinary proceedings against Alfred E. Mitchell alleging 10 specifications of misconduct.

In accordance with article 15, § 3 of the Articles of Incorporation, the respondent was notified of these charges, and an adversary hearing was instituted. Respondent acted as his own attorney at this hearing. After receiving the evidence presented by both sides, the committee found the respondent guilty of. seven of the ten allegations of misconduct.

Acting on these findings the committee, in accordance with article 15, § 4(c) of the Bar Association’s Articles of Incorporation, filed a suit for disbarment against respondent in this court. The court appointed Alex W. Wall as a commissioner to take evidence and report his findings to this [586]*586court. Louisiana State Bar Association Articles of Incorporation, art. 15, § 6(b) and (d).

At the hearing conducted by the commissioner, the attorney for the bar association introduced, without objection, the entire record developed at the hearing which had been conducted by the Committee on Professional Responsibility. In addition to this evidence, Mr. Mitchell testified on his own behalf. After considering all the evidence, the commissioner filed his report wherein he set out his findings of fact and conclusions of law recommending that respondent be disbarred. The respondent, through counsel, has excepted to the findings of the commissioner. After briefing and argument in this Court, the matter has now come before us for a final decision.

The alleged acts of misconduct arise from respondent’s representation of four clients.

The Scioneaux Representation

Specifications numbers one and two relate to respondent’s representation of Mrs. Irene Scioneaux. The testimony at the hearing revealed'that the respondent settled Ms. Scioneaux’s case for a total of $14,916.75. Three drafts made out to Mrs. Scioneaux and Alfred E. Mitchell were issued by the settling defendant’s insurance company. The respondent had Mrs. Scion-eaux endorse these drafts on February 3, 1981, one day after he received them. The respondent testified that "... the drafts were cashed. I took mine that was agreed on out; gave the rest to my secretary ...” (committee transcript at p. 287). When asked what his secretary did with the money, he replied that “whatever monies I have, I give them to her and she put them in the safe. I can’t even get in the safe.” (committee transcript at p. 292). He maintained that he did not know how the money was kept in the safe because this was left entirely to his secretary. The secretary, who was Mr. Mitchell’s sister, did not confirm or deny the “safe” testimony.

In any event, the drafts were cashed and not deposited in a bank account as evidenced by the bank records introduced at the hearing. Mr. Mitchell was to use this money to pay the medical expenses, property damage (the note and mortgage which Mrs. Scioneaux had given to the State Bank & Trust Company for her now destroyed automobile had become due and payable), and to give the remaining money to Mrs. Scioneaux as her share of the damages. Mrs. Scioneaux testified that at the time the drafts were endorsed by her, Mitchell told her that the money would not be available for three weeks. She further testified that at the end of these three weeks she went to Mr. Mitchell and requested her money, but was told that the bank had not returned the checks. She reluctantly accepted this explanation, but later when she made another demand for her money — Mitchell confirmed her worst fears. “... He told me it was a family matter, that I wasn’t going to get anything out of it; it was a family matter, I’ll never forget that.” (Apparently a relative of Mrs. Scioneaux’s was the tortfeasor and Mitchell seized on this as a pretext for not paying.) (committee transcript at p. 102). The distraught Mrs. Scioneaux th"en called the insurance company that had issued the checks in order to verify Mr. Mitchell’s explanation. They told her that she had been paid and the checks had already cleared. Upon discovering this Mrs. Scion-eaux hired another attorney, Mr. Stanga, to help her collect.

Mr. Mitchell testified that he told Mrs. Scioneaux on several occasions to “come and get her money.” However, according to Mr. Mitchell, she steadfastly refused to accept her portion of the settlement.

Mr. Stanga testified that he made a written demand upon Mr. Mitchell for payment. On May 15, 1981, he received a statement of distribution in which Mr. Mitchell listed the following disbursements: attorney’s fees (50%), repayment of a loan (the property damage), and payment of certain bills. Attached to the statement was a photocopy of the checks drawn on the client trust account drawn on May 15, 1981. One of these checks, made out to Mrs. Scioneaux and her attorney, Mr. Stanga, for her por[587]*587tion of the settlement accompanied the statement. Therefore, the client was finally paid three and one-half months after endorsing the check. The client’s portion and the other debts associated with this case were paid only after legal demand was made upon Mr. Mitchell.

Out of the amount eventually paid Mrs. Scioneaux she had to pay her attorney a 40% contingency fee. Unhappy with her 60% of $1,988.48 out of a total settlement of $14,916.75, Mrs. Scioneaux sued Mr. Mitchell for the 50% fee he had retained and Mr. Mitchell settled for $8,000.00.

From the evidence adduced the commissioner found that the respondent violated Disciplinary Rule 1-102(A)(4) in that his conduct, if not dishonest, was deceitful and misrepresented the facts to his client. He also found that Mr. Mitchell violated Disciplinary Rules 9-102(A) and 9-102(B).

The Bar Association has the burden of establishing by clear and convincing evidence that respondent is guilty of the alleged specifications of misconduct. Louisiana State Bar Association v. Levy, 292 So.2d 492 (La.1974). In our review we will determine if the Bar Association has met this heavy burden and if the evidence supports the commissioner’s conclusions of law.

Disciplinary Rule 1-102(A)(4) states that “a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” The commissioner found that respondent’s handling of Mrs. Scion-eaux’s settlement, “if not dishonest was deceitful and misrepresented the facts to his client, Mrs. Scioneaux.” There is ample evidence in the record to support a finding that Mitchell was deceitful and misrepresented facts. Mitchell cashed the checks immediately. However, when his client returned three weeks later he said the checks had not cleared. When she returned again, he told her she was not entitled to collect because the tort was committed by a member of her family. This proved to be a fabrication when the client contacted the insurance company. Clearly this evidence leads to a conclusion that respondent was attempting to appropriate his client’s money to his own use.

Mr. Mitchell denies this, but the committee and commissioner obviously felt that the client’s testimony and that of her attorney were more credible than Mitchell’s.

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Related

Louisiana State Bar Ass'n v. Martin
559 So. 2d 483 (Supreme Court of Louisiana, 1990)
Louisiana State Bar Ass'n v. Carpenter
502 So. 2d 1023 (Supreme Court of Louisiana, 1987)

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481 So. 2d 583, 1986 La. LEXIS 5478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-state-bar-assn-v-mitchell-la-1986.