LOUISIANA ATTORNEY disciplinary BOARD RECOMMENDS Fred A. BLANCHE, III. The two consolidated cases are disciplinary matters initiated by the filing of formal charges against the Respondent. Mr. Blanche had a high-volume personal bankruptcy practice. He admits that in the years 2006 and 2007, the quality of his representation sharply declined.
Original Description:
Original Title
Louisiana Attorney Disciplinary Boa.kuf_blanche Fred 05db085 Cw 08db065 05172010
LOUISIANA ATTORNEY disciplinary BOARD RECOMMENDS Fred A. BLANCHE, III. The two consolidated cases are disciplinary matters initiated by the filing of formal charges against the Respondent. Mr. Blanche had a high-volume personal bankruptcy practice. He admits that in the years 2006 and 2007, the quality of his representation sharply declined.
LOUISIANA ATTORNEY disciplinary BOARD RECOMMENDS Fred A. BLANCHE, III. The two consolidated cases are disciplinary matters initiated by the filing of formal charges against the Respondent. Mr. Blanche had a high-volume personal bankruptcy practice. He admits that in the years 2006 and 2007, the quality of his representation sharply declined.
IN RE: FRED A. BLANCHE, III RECOMMENDATION TO THE LOUISIANA SUPREME COURT *********************************************************************** INTRODUCTION TO THE CONSOLIDATED MATTERS The two consolidated cases are disciplinary matters initiated by the filing of formal charges against the Respondent, Fred A. Blanche, III. Both sets of charges center upon Mr. Blanche's handling of personal bankruptcy cases filed with the United States Bankruptcy Court for the Middle District of Louisiana. Mr. Blanche had a high-volume personal bankruptcy practice. He began his bankruptcy law practice in the year 1986. 1 During the period in question in these disciplinary cases, i.e., between April 1,2003 through the present time, Mr. Blanche was counsel in 4,784 bankruptcy cases? By all accounts, Mr. Blanche handled the high volume of his practice competently for many years. Mr. Blanche admits, however, that in the years 2006 and 2007, the quality of his representation sharply declined. Mr. Blanche's wife had helped him manage his practice, and according to Mr. Blanche's testimony, his practice was struck by three events around the same time: "I lost my -my best employees. The law changed. My wife got sick. And that's what happened to my practice.',3 One of Mr. Blanche's clients, Brandy Babin, complained about his representation during an even earlier period of time than the one Mr. Blanche describes as pivotal for the I Transcript of Hearing of Mar. 31, 2009, p. 332-333 (testimony of Fred Blanche, 1II)[this hearing was held in connection with the second matter docketed as number 08-DB-065]. 2 Transcript of Hearing of Mar. 31,2009, p. 332-333(testimony of Fred Blanche, 111). 3 Transcript of Hearing of Mar. 31,2009, p. 308(testimony of Fred Blanche, Ill). 1 decline in the quality of his representation. The Board has already reviewed the record of that case (05-DB-085), and concluded that Mr. Blanche committed professional misconduct by neglecting the bankruptcy representation of Brandy and Joseph Babin in late 2003 through the early part of 2004. The record of that case (05-DB-085) was sent to the Supreme Court with a recommendation that Mr. Blanche "be suspended from the practice of law for a period of three months, with all but thirty days deferred" subject to a period of actively supervised suspension. After the record of 05-DB-085 was lodged with the Supreme Court, the ODC notified the Court that it had received several other complaints relating to a later time period. Citing the potential for threat of harm to the public, the Court suspended Mr. Blanche from the practice of law on an interim basis while disciplinary matters were pending against him. The Court also remanded the record relating to Mr. Blanche's handling of the Babin bankruptcy representation back to the Disciplinary Board. The Court explained: "the matter bearing this court's docket number 08-B-0107 [is] remanded to the disciplinary board for consolidation with the pending investigative matters. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.,,4 After its investigation, on August 15, 2008, the ODC filed formal charges consisting of five counts of alleged misconduct by Mr. Blanche: Count I states that Mr. Blanche was repeatedly sanctioned by the Bankruptcy Court for incompetent representation of numerous clients and the same Court 4 Order in In re Blanche, 08-B-OI07, 08-B-0257 (La. Sup. Ct. 2/13/08). The matter docketed at the Court as 08- B-OI07 corresponds to the Disciplinary Board's number of05-DB-085. 2 suspended Mr. Blanche on May 16, 2007, from practicing there for a period of 18 months. Count II states that while Mr. Blanche was suspended by the Bankruptcy Court, he advised a former client (Womer Cruse) without permission of the new client's attorney. Count 1II states that Mr. Blanche was advised on November 28, 2006 of errors in a Chapter 13 plan he had submitted on behalf of William Henry Brooks, III. The judge ordered Mr. Blanche's attorney's fee reduced by $250 because of the errors, but Mr. Blanche nevertheless submitted a request for attorney's fees of$999. Count IV states that Mr. Blanche was personally served with a subpoena pursuant to the authority of the Louisiana Supreme Court, directing him to appear before Disciplinary Counsel in connection with the investigation of three complaints. Mr. Blanche failed to comply with the subpoena. Count V indicates that Mr. Blanche represented Pamela Armstead 1ll a bankruptcy proceeding, and that Mr. Blanche simultaneously represented Ms. Armstead in a personal injury claim. Mr. Blanche settled the personal injury case on Ms. Armstead's behalf for $14,000, though he never had proper authorization from the bankruptcy trustee to settle the case. Moreover, Mr. Blanche did not give the money to the trustee as part of the court-mandated administration of Ms. Armstead's bankruptcy estate. s 5 This second set of formal charges was docketed by the Board as No. 08-DB-065. 3 In his Answer filed September 24, 200S, Mr. Blanche admitted the allegations of Count IV (failure to cooperate with ODC) as pleaded. Mr. Blanche admitted the allegations of Count I (deficiencies in bankruptcy practice) and Count V (the Armstead matter) with qualifications. Mr. Blanche denied the allegations of Count II (the Cruse matter) and Count III (the Brooks matter). Mr. Blanche indicated further that mitigating factors existed, and prayed "for such discipline as is appropriate under the circumstances." After an evidentiary hearing, Hearing Committee No. 39 found that Mr. Blanche had committed professional misconduct as alleged in all but Count IV of the five-count formal charges. 6 The Committee recommended a suspension from the practice oflaw of three years. Pursuant to the Court's direction that both cases should be considered together, ODC has moved the Board to docket the first case (05-DB-OS5) with the second case (OS-DB-065) for oral argument. The matters were in fact docketed as such for oral argument before Panel "A" on January 25, 2010. In a separate Order issued in connection with this Recommendation, the Board completes the formality of granting ODC's Motion because the procedure prayed for in ODC's Motion directly conforms to the Court's instructions, including the instruction for the Board to later issue a single Recommendation regarding both cases (05-DB-OS5 and OS-DB-065), which the Board now issues. Given this posture, this Recommendation summarizes the record of each case in turn, and an appropriate sanction for both consolidated matters appears at the Analysis Section, beginning at page 24. 7 6 The Committee found misconduct occurred as alleged in Count V, but not as to every specific rule violation charged in Count V.. 7 Because the first case, 05-DB-085 has once before been reviewed by the Board, a procedural history of that case is not discussed in the body of this Recommendation, but is instead presented as Appendix A. The salient procedural events from the second case, 08-DB-065, have been discussed in the Introduction. 4 THE FORMAL CHARGES (Case Number 08-DB-065) The formal charges in this matter read, in pertinent part, as follows: COUNT I Between April 1, 2003 and May 16, 2007 you were engaged in the active practice of law in the U.S. Bankruptcy Court, Middle District of Louisiana. During that period of time you were the subject of numerous and repeated rules and/or orders to show cause involving approximately sixty five different bankruptcy cases. These rules and/or orders to show cause involved repeated varied and diverse incidents of improper conduct on your part including, but not limited to: failures to pay filing fees; failures to comply with trustee's requirements; failures to appear in court and failures to file documents. These rules and/or orders to show cause resulted in financial sanctions and/or fee/cost disgorgements being ordered against you approximately thirty seven times. The credit card that you used to pay filing fees was declined on approximately eight different instances between November 7, 2006 and November 30, 2006. On November 21, 2006 your electronic password was ordered disabled, and you were ordered to provide a valid credit card to the court (you had been using your mother's credit card). On May 16, 2007, after a bankruptcy court show cause proceeding in which you participated, it was ordered that, effective Juue 29, 2007, you were suspended from practicing in and appearing before the U.S. Bankruptcy Court for the Middle District of Louisiana for a period of eighteen months. The written order was issued on May, 17,2007. You failed to provide competent representation to clients in violation of RPC 1.1 a . You failed to act with diligence and promptness on behalf of clients in violation of RPC 1.3. You failed to properly handle and use funds entrusted to you to pay clients' filing fees in violation of RPC 1.15. You have failed to properly supervise your non-lawyer employees in violation of RPC 5.3. You have engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of RPC SA(c). You have engaged in conduct that is prejudicial to the administration ofjustice in violation of RPC SA(d). COUNT II On April 19, 2007 you filed a Chapter 13 bankruptcy proceeding for Womer Cruse, number 07-10511 in the U.S. Bankruptcy Court, Middle District of Louisiana. On May 17, 2007the U.S. Bankruptcy Court, Middle District of Louisiana, issued a written order immediately barring you from filing any new bankruptcy cases, and suspending you from practicing in and appearing before said bankruptcy court for a period of eighteen months commencing on June 29, 2007. After May 17, 2007, but prior to Juue 29, 2007 your law office prepared bankruptcy documents and/or pleadings for Mr. Cruse, which he 5 filed pro se on or about July 6, 2007. On or about July 11, 2007 Mr. Cruse obtained new counsel, Derren Johnson to represent him in his bankruptcy proceeding. After Mr. Cruse had obtained Ms. Johnson as counsel in his bankruptcy proceeding, but before January 9, 2008, without permission from Ms. Johnson, you spoke with Mr. Cruse about his bankruptcy, and prepared a plan or strategy for proceeding with his bankruptcy for him to take to Ms. Johnson to implement. On January 10, 2008 an Order to Show Cause was issued in Mr. Cruse's bankruptcy case ordering you to appear. On February 13, 2008, after the bankruptcy court show cause proceeding in which you participated, it was ordered that, effective immediately you were permanently barred from filing any proceeding in, practicing in and appearing before the U.S. Bankruptcy Court for the Middle District of Louisiana; and from giving any legal advice in connection with, or in contemplation of, a bankruptcy case before said court. The written order was issued on February, 25, 2007. You have with and advised a former client, whom you knew to be represented by other counsel, about the subject matter of the representation, without the consent of the former client's current counsel in violation of RPC 4.2 (a). You have failed to properly supervise your non-lawyer employees in violation ofRPC 5.3. You have engaged in the unauthorized practice oflaw in violation of RPC 5.5 (a) . You have engaged in conduct that is prejudicial to the administration ofjustice in violation ofRPC 8.4 (d) . COUNT III On July 28, 2006 you filed a Chapter 13 bankruptcy petition for William Henry Brooks, III in the U.S. Bankruptcy Court, Middle District of Louisiana. On November 28, 2006 you were advised of errors in the Chapter 13 plan which you needed to correct. On December 6, 2006 a scheduled hearing was continued to December 20, 2006 because you had not made those corrections to the Chapter 13 plan. On December 20, 2006 the hearing was continued to January 10, 2007, and your attorney's fee was ordered reduced by $250.00, because you had not made those corrections to the Chapter 13 plan. On January 10, 2007 Mr. Brooks' bankruptcy case was dismissed at your request. The written order was issued on January, 11,2007, and required the Trustee to return all funds in her possession to the debtor, Mr. Brooks. On January 10, 2007 you faxed a hastily prepared Motion for Payment of Attorney's Fee Out of Undistributed Funds Held By The Trustee. Your Motion prayed for a fee of $999.00, claimed that you had complied with all of your obligations to Mr. Brooks, and failed to include any mention of the December 20, 2006 order reducing your attorney's fee. You failed to act with diligence and promptness on behalf of Mr. Brooks in violation of RPC 1.3. You have failed to properly supervise your non-lawyer employees in violation of RPC 5.3. You have engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of RPC 8.4 (c) . You have engaged in conduct that is prejudicial to the administration of justice in violation ofRPC 8.4(d). 6 COUNT IV On April 8, 2008 you were personally served with a subpoena, issued pursuant to the authority of the Supreme Court Of Louisiana, ordering you to appear before Disciplinary Counsel at 10:00 A.M. on April 17, 2008 to testify and to produce documents in the investigation into three complaints filed against you, including the complaint of William H. Brooks (Count III, supra) and the matter of your being permanently barred from bankruptcy court (Count II, supra). You failed, neglected, or refused to appear pursuant to the subpoena; and failed, neglected, or refused to produce the required documents. You have obstructed Disciplinary Counsel's access to evidence in violation of RPC 3.4(a). You have disobeyed an obligation under the rules of a tribunal in violation of RPC 3.4(c). You have failed to cooperate in a disciplinary investigation in violation of RPC 8.1 (b) (c) . You have engaged in conduct prejudicial to the administration ofjustice in violation of RPC 8.4 (d) . COUNT V On June 13, 2006 you filed a Chapter 13 bankruptcy petition for Pamela Armstead in the U.S. Bankruptcy Court, Middle District of Louisiana. On or about July 13, 2006 you notified Travelers Insurance that you would be representing Ms. Armstead in her December 15, 2005 personal injury claim. The personal injury claim was not listed in Ms. Armstead's bankruptcy petition or schedules, and you had not obtained the required authorization to represent Ms. Armstead in her personal injury claim from the Bankruptcy Trustee. On August 16, 2006, at the meeting of creditors the Trustee learned of Ms. Armstead's personal injury claim. By letter dated August 21, 2006 the Trustee's office sent you a sample of the motion required in order for you to obtain authorization to represent Ms. Armstead, and receive a fee, in her personal injury claim. By letter dated October 5, 2006 the Trustee's office again contacted you about the matter. You failed to file the required motion to obtain the required authorization to represent Ms. Armstead, and receive a fee, in her personal injury claim. You settled Ms. Armstead's personal injury claim. On December 4, 2006 Travelers insurance issued settlement checks totaling $14,000.00 as follows: $705.46 to Lane Memorial Hospital; $750.00 to Shameka Armstead; $750.00 to Tameka Armstead; and $11,794.54 to Pamela Armstead. You received Pamela Armstead's $11,794.54. You gave Ms. Armstead $7,864.00 in cash, in two payments, and retained $3930.54 as your fee. You failed to properly deposit and disburse Pamela Armstead's $11,794.54 settlement proceeds through your trust account, and failed to keep or maintain the records of this transaction required by LaS.Ct. Rule XIX, Section 28A. The Trustee's office continued to contact you about Ms. Armstead's personal injury case. On January 23, 2007 you obtained from your mother, Polly P. Blanche, a check for $13,000.00 made payable to Aunette C, Crawford. Ms. Crawford is the Chapter 13 Bankruptcy Trustee for the U.S. 7 Bankruptcy Court, Middle District of Louisiana. On January 25, 2007 you presented your mother's check to the Trustee's office for Ms. Armstead's bankruptcy. You failed to provide competent representation to a client in violation of RPC I I a . You failed to act with diligence and promptness on behalf of a client in violation of RPC 1.3. You failed to properly handle, and maintain records of, a bankruptcy client's personal injury settlement funds in violation of RPC LIS. You have failed to comply with the bankruptcy court's rules relating to personal injury cases in violation ofRPC 3.4 (c) . You have failed to properly supervise your non-lawyer employees in violation of RPC 5.3. You have engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of RPC 8.4 (c) . You have engaged in conduct that is prejudicial to the administration ofjustice in violation of RPC 8.4(d). THE HEARING COMMITTEE REPORT (Case Number 08-DB-065) On December 8, 2009, the Committee made the following findings of fact and of rules transgressions stemming from the formal charges: COUNT 1 - THE BANKRUPTCY COURT COUNT Count I is not a client specific count but rather pertains to Mr. Blanche's conduct as a whole in connection with his Bankruptcy Court practice from April 1,2003 to Mayl6, 2007, the day before his suspension by Judge Dodd. The essence of Count I is that respondent, not with respect to any particular case per se, but in the context of his total practice in various matters, violated the Rules of Professional Conduct by engaging in repeated actions which constituted "repeated varied and diverse incidents of improper conduct on his part including, but not limited to: failures to pay filing fees, failures to comply with trustee's requirements; failures to appear in court and failures to file documents" (ODC Pre-Trial Memorandum, P.IO) The Count also refers to multiple instances in which his credit card was declined and notes that his electronic password was disabled as a result thereof. ODC also contends in its pre-trial memorandum that Mr. Blanche's response to Count I is in essence an admission as to the facts on which the Count is predicated. ODC's position is that while Mr. Blanche disagrees with the assertions in the formal charges that his conduct violated the specific rules as alleged, his response is nevertheless in the nature of an admission as to the factual underpinnings of Count 1. Having reviewed the response filed by Mr. Blanche as to Count 1, the committee agrees with ODe's position concerning the admission of the predicate facts. It should be.noted though that the record from the Bankruptcy 8 Court is detailed and there is really no doubt that the show cause orders were issued, that Mr. Blanche's password was disabled requiring him to file in person, or that respondent missed multiple creditor hearings, etc. Both Ms. Crawford and Ms. Elizabeth Hager, Chief Deputy Clerk for the Bankruptcy Court, testified on these matters. Their testimony was both credible and unrebutted by respondent. The real issue according to Mr. Blanche is whether these instances of conduct amount to misconduct warranting discipline or whether, as Mr. Blanche suggests, these show cause orders and sanctions simply reflect the procedure with which Judge Dodd regulates the normal practice in his Court. On this point the testimony of Ms. Crawford, the Chapter 13 Bankruptcy Trustee for the Middle District is significant She testified at the hearing as follows: BY MS. FONTENOT: Q. The count filed by the ODC indicates that there were 65 show cause orders. Are those you or are those Chapter 7? A. They could be either. I know that there were a number in the Chapter 13. They could be requests by me or it could be requests by the court. The court issues their own orders to show cause. I generally wouldn't do that unless there was a lack of appearance at a hearing, or - and that's mainly the ones he got from me, if there was a hearing and he didn't appear. I know that the judge initiated many of those on his own. Q. Do you know how many of the 65 were you and how many of them were from the judge? A. I would just be guessing, but I would say maybe 15 to 20 of them were mine. And then the rest would be initiated by the judge. Q. Compared to the other attorneys practicing in front of you, especially the ones with the case loads similar to his, is that a disproportionate number of show cause, or does everybody pick some citations up during the year? A. No. There -- there are like one or two attorneys that pick them up, you know, on a regular basis. People who don't file as many cases, maybe only file two or three a month and never really get into the practice, there are always some issues. But as a main filer, which he was one of three at the time, 1 would consider main filers, you know, that probably between the three of them were 80 percent of the practice. And it was not-that was- that's an above average number. Q. And the 37 financial sanctions, same question. Is that comparable to other attorneys or - is it slightly high, or is that off the chart? I mean, is that - 9 A. For that time period, I would say it was off the chart. [T. 243, L.2 - T.244, L.21](Emphasis Added by the Committee), The testimony of Ms. Crawford and Mr. Blanche both reflect that Judge Dodd does in fact use the mechanism of show cause orders to regulate practice in his court. This not the real inquiry though. The real inquiry is not whether this was a mechanism employed in the court as a matter of practice; but rather, whether respondent was neglecting his practice in that court such that he found himself the object of these show cause orders on a routine basis. The testimony of Ms. Crawford makes clear that the number of show cause orders issued to Mr. Blanche was high for someone who was considered to be one of the three main filers. Moreover, the 37 financial sanctions levied by Judge Dodd is clearly indicative of a widespread problem which was not endemic in the court at large but rather confined to respondent's practice during the time frame at issue. It cannot be overlooked that Judge Dodd himself felt that Mr. Blanche's conduct warranted suspension from the Bankruptcy Court in the Middle District of Louisiana for 18 months, a suspension that Judge Dodd handed down on May 17, 2007. Judge Dodd's opinion, in evidence as ODC 3 (Bates numbered 246 through 275) is very detailed and Judge Dodd makes clear that Mr. Blanche's behavior was not the norm. Likewise, the document introduced as ODC 4 which contains a summary of all of the show cause orders issued is detailed and does, in the committee's opinion, evidence a pattern of repeated neglect of matters in the Bankruptcy Court by respondent. Based on the testimony of Ms. Crawford, Ms. Hager and the respondent as well, the committee finds as a matter of fact that there was, as alleged by ODC, a pattern of neglect involving a significant number of cases in the Bankruptcy Court such that a violation of the rules did in fact occur as alleged by ODC. Specifically, the committees finds as a matter of fact as follows with respect to Count I: (l) That approximately 65 show cause ordered were issued during the time frame as alleged in the Formal Charges; (2) That 37 financial sanctions were levied by Judge Dodd against respondent; (3) That Mr. Blanche's password was disabled specifically as a result of multiple declined charges pertaining to filing fees; (4) That Mr. Blanche's filings were frequently deficient in a variety of respects requiring court personnel to intervene and expend time and resources assisting in correcting routine filings; (5) That Mr. Blanche employed his wife, Karen (a non-lawyer), to handle filings as part of his practice; (6) That personnel in the Clerk's office witnessed behavior in respondent's wife indicative of some type of impairment; 10 (7) That during the operative time frame in Count I Mr. Blanche had actual or constructive knowledge of his wife's infirmity as well as the multiple instances of filing deficiencies allegedly related thereto; (8) That respondent himself missed multiple hearings and meetings in his client's cases during the operative time frame as alleged in Count I. ALLEGED RULE VIOLAnONS I MISCONDUCT (COUNT I) The burden is on ODC to prove by "clear and convincing evidence" each allegation of misconduct it has made against Mr. Blanche. 4 Respondent is charged with violations of Rule U(a) (failing to provide competent representation), Rule 1.3 (failure to act with diligence and promptness), Rule U5 (failure to properly handle and use funds entrusted to the client), Rule 5.3 (failure to properly supervise non-lawyer 4 See e.g. Louisiana Supreme Court Rule XIX $ 18(C) ("Standard of Proof. Formal Charges of misconduct ...shall be established by clear and convincing evidence."); See also, In Re Ouaig, 646 So.2d 343, 348 (La. 1994). employees), Rule 8A(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), and Rule 8A(d) (engaging in conduct prejudicial to the administration ofjustice). Each of these is discussed in turn. Rule U(a) states: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for that representation, It is the opinion of this committee that ODC has carried its burden of proof with respect to the alleged violation of Rule U(a) in Count I. While the record reflects that respondent possesses the requisite knowledge and skill, the record likewise establishes that there was a lack of thoroughness and preparation with respect to his bankruptcy filings with the time period set forth in Count 1 and further that the frequency and repetitive nature of the acts and omissions further evidences a pattern of neglect. Rule 1.3 requires that a lawyer "act with reasonable diligence and promptness in representing a client" and this committee feels that with respect to this alleged misconduct, ODC has likewise carried its burden. It should be noted at this juncture that quite a bit of testimony at the hearing in this matter dealt with issues pertaining to respondent's wife, Karen. Since the issue was addressed at the hearing, and given that certain of the colloquy between the respondent and certain of the witness as well as certain exhibits were sealed to protect his wife's privacy, a detailed recitation of these 11 facts is not warranted herein. That being said, however, respondent himself testified that in his opinion "[something happened to my wife in 2003" [T. 128, L. 19-20] which respondent was well aware of that prevented her from functioning in the capacity that she was employed in. In fact, respondent admits that he hired someone to assist for this very reason in 2004 and the situation was ameliorated up and through this individual's departure in late 2005. [T. 133, L. 24 - T. 134, L.18]. When this individual left though respondent admits that his practice again declined. It is not clear whether Mr. Blanche is proffering evidence of his wife's condition as an explanation or as a defense. What is clear though, and what this committee concludes, is that this is not a situation in which an employee makes a mistake or engages in other conduct which causes harm that the lawyer was unaware of until after the fact. Rather, the committee finds that the facts presented here fall within the situation contemplated by Rule 5.3 of the Rules of professional conduct when it refers to conduct by a non-lawyer which the lawyer in a supervisory position knows of and further "knows ofthe conduct at a time when its consequences can be avoided or mitigated butfails to take remedial action. " Rule 5.3 provides that the lawyer in such instances shall be responsible for the non-lawyer's conduct. Therefore, based on the facts adduced and the admissions made by respondent, the committee finds as well that ODC has carried its burden with respect to the establishing of a violation of Rule 5.3. With respect to the remaining alleged Rule violations, the committee feels that clearly given the amount of cases involved, the delays associated therewith, the resources including time spent by court personnel rectifying deficient filings and the amount of judicial intervention involved, it would be hard not to conclude that respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). Where the committee feels that ODC did not carry its burden was in establishing the alleged violation of Rules 1.15 (on this particular count) and Rule 8.4(c) which is conduct involving dishonesty, fraud, deceit or misrepresentation. In fact, Ms. Crawford when questioned on the issue of dishonesty, fraud and the like offered favorable testimony concerning respondent and the committee feels that this is a case of neglect, not a case of dishonesty or fraud. COUNT 2 - THE WORNER CRUSE BANKRUPTCY MATTER Unlike the previous count, Count II of the Formal Charges pertains to a specific matter, a Chapter 13 Bankruptcy petition by Worner Cruse ("Mr. Cruse"). The record reflects that the matter was commenced on April 19, 2007 in the Middle District by Mr. Cruse through counsel, Mr. Blanche. The filing of this petition occurred less than a month before respondent's suspension by Judge Dodd. The operative dates are significant because while Judge Dodd's ruling suspending respondent from the Middle District was handed down on May 17,2007, it was suspensive in nature and did not actually take effect until June 29, 2007. 12 After the suspension took effect, Mr. Cruse retained other counsel, Derren S. Johnson ("Ms. Johnson"), in counection with the bankruptcy filing. This was done on or about July 11,2007. According to Ms. Johnson in her testimony at the hearing, she became aware that Mr. Curse (sic.) was getting advice concerning his bankruptcy from some other source. Specifically, Ms. Johnson testified as follows: BY MR. BLANCHE: Q. Is it fair to say that Mr. Cruse had been trying for a month to get you to respond to the motion for relief from the automatic stay where the mortgage company wanted to get permission from the bankruptcy judge to foreclose on his home? A. No, sir. I don't think that's a fair statement at all. The problem I was having with Mr. Cruse was that I could not get the information or the documentation that I needed from Mr. Cruse to prepare the necessary pleadings of any kind for him with regard to the motion to lift the stay. because he was telling me that I didn't need that documentation because he was told that I did not need that documentation. So the fact that he was receiving advice from some other source impeded mv ability to represent Mr. Cruse with respect to that matter. So as soon as that stopped happening, Mr. Cruse's matter was quickly resolved '" [T. 20. L. 10 - T.2L L.5l(Emphasis Added) The record further reflects that at some point Mr. Cruse showed up at Ms. Johnson's office with a handwritten note outlining a modified plan. The handwritten document, admitted into evidence as ODC 7, clearly reflects what can only be construed as an outline for a modified plan in bankruptcy and respondent has admitted to preparing the document. 5 In his testimony before the committee Mr. Blanche testified as follows with respect to the Cruse matter: "I mean, there was no question about who confected that note. I suppose I knew that I was going to get into trouble for it. I thought I could explain it to the judge, though, that it didn't come from any motive to interfere with her relationship with Mr. Cruse but only to let them know that there was a basis for an amendedplan... " [T. 176, L. 6-14] Later in his testimony, respondent explains that while he was certainly guilty of talking to another lawyer's client, "it was for a good reason." [T. 169, L. 9-14]. Thus, it is clear to this committee from a factual standpoint that respondent did in fact prepare ODC 7 which is clearly an amended plan while suspended from the practice of law in the Bankruptcy Court. It is also clear that while Mr. Blanche was technically representing Mr. Cruse on a separate matter, he nonetheless communicated with Mr. Cruse about the substance of the bankruptcy matter while Mr. Cruse was represented by other counseL 13 This communication was without Ms. Johnson's approval and consent and constitutes a technical violation of Rule 4.2(a) of the Rules of Professional Conduct. Likewise, ODC 5 Respondent admitted preparing the document during Ms. Johnson's testimony before being sworn (See Transcript at T.SS, L. 3-8) and later on direct at T. 167, L6-14. as proven by "clear and convincing evidence" that respondent engaged in the practice of law while suspended by drafting an amended plan for Mr. Cruse. ALLEGED RULE VIOLATIONS / MISCONDUCT (COUNT II) In this count, Count II, respondent is charged with violations of Rule 4.2(a) (communication with a person represented by counsel), Rule 5.3 (failure to properly supervise a non-lawyer employees), Rule 5.5(a) (engaging in the unauthorized practice of law), and Rule 8.4(d) (engaging in conduct prejudicial to the administration ofjustice). Like before, each is discussed in turn. Rule 4.2 of the Rules of Professional Conduct proscribes contact with a person known to be represented by counsel about the subject matter of the representation unless "the lawyer has the consent of the other lawyer or is authorized to do so by a court order.!" RPC 4.2(a). The committee finds that respondent did in fact communicate with Wamer Cruse, his former client, about the subject matter of his bankruptcy while he was represented by Ms. Jolmson. Moreover, the testimony is clear that Ms. Johnson did not authorize this and that there was no court order authorizing said communication. Mr. Blanche's communication with Warner (sic.) Cruse about his Chapter 13 filing occurred not only during the course of Ms. Johnson's representation but also occurred during the term of respondent's suspension. Thus, not only was there no court order allowing the communication, but since the communication was in the nature of legal advice, there was actually a court order barring such communication. Clearly Judge Dodd was not amused as this was the factual predicate for Mr. Blanche's permanent disbarment from practice in the Bankruptcy Court. (See Order of Judge Dodd. dated 2-25-2008 in evidence at ODC-l 0). The committee appreciates that Respondent's motivation may not have been to interfere in any way with Mr. Cruse's proceeding or with Ms. Johnson's representation of Mr. Cruse and was more likely than not an act stemming from a sincere effort to help Mr. Cruse. The rule, as the committee reads it, does not contain a motivational qualifier. As such, while Mr. Blanche may not have violated the spirit of the rule, he nevertheless technically violated the rule. Ms. Johnson has testified that in fact, respondent's intent notwithstanding, Mr. Blanche did as a matter of fact have an adverse affect on her representation of Mr. Cruse even if ultimately this did not palpably harm the client. Given the above, the committee finds that ODC has carried its burden of establishing by clear and convincing evidence that respondent violated 14 Rules 4.2(a) and 5.5(a) and that, with respect to the violation of Rule 5.5(a) only, that said conduct warrants discipline. Further, although the effect may have been minimal, the committee also finds that respondent violated Rule 8.4(d) as well. Respondent has of course been sanctioned severely for these violations already and this will be discussed herein below but the committee does find that the violations occurred. As to the remaining alleged rule violation, that of Rule 5.3, the committee finds that with respect to the Cruse matter, this Rule was not violated. The predicate acts involve Mr. Blanche's conduct directly not vicariously and as such ODC has not carried its burden on this alleged violation. COUNT III - THE BROOKS BANKRUPTCY MATTER Like Count II of the Formal Charges, this count, Count III, pertains to a specific matter, a Chapter 13 Bankruptcy petition by William Henry Brooks ("Mr. Brooks"). Unlike some of the other counts in which respondent has admitted rule violations and or misconduct, respondent denies all allegations as set forth in this count and has maintained that position throughout this proceeding. The record reflects that the Brooks matter was commenced on July 28, 2006 in the Middle District by Mr. Brooks through counsel, Mr. Blanche. The docket report in this matter, admitted at the hearing as ODC 14, details the progress of the case. It is noted that the filing fee was paid by Mr. Blanche. It is also noted that there do appear to be several deficiencies in the schedules but that these were promptly corrected. In his testimony to this hearing committee, Mr. Brooks complained about continuances and alleged harm as a result of having to take off work to attend hearings which were, after appearing, continued for one reason or another. Unlike some of the cases at issue in Count I however, the record reflects that respondent was in court with Mr. Brooks and that many, if not all, of the problems having to do with Mr. Brooks' case were not the result of Mr. Blanche's actions, but rather Mr. Brooks' actions. By way of example, the docket sheet indicates that a continuance in Mr. Brooks matter was ordered by the trustee, Annette Crawford (Rec.Doc. 12, ODC II at Bates Page 389) early in the proceedings; however, the notation thereafter indicates that the continuance was a result of the fact that Mr. Brooks' domestic support obligation payments were not current at the time of the hearing nor at the next hearing on September IS. (Rec.Doc. 13). It would appear that Mr. Brooks was not current on his payments for child support during the operative time period and further that as a result of this the U.S. Trustee filed a "Notice ofIneligibility to Receive Chapter 13 Discharge" barring Mr. Brooks' discharge. (Rec. Doc. 25, contained in ODC 14). The docket sheet reflects the filing of multiple amended plans, court appearances, at which Mr. Blanche was present. The overall thrust of the record is that Mr. Brooks was never current on his obligations and this was the reason for the dismissal of his case on January II, 2007. There does not 15 appear to be any nexus between the actions of respondent and the dismissal of Mr. Brooks' case. At the hearing in this matter Ms. Crawford testified that a debtor needs to be current to get a plan confirmed and this testimony is consistent with the record. While it is true that Judge Dodd ordered a fee disgorgement of $ 250.00 as a sanction for a filing deficiency, this sanction would be encompassed within the scope of those considered by the committee in Count 1. There was no testimony to indicate that as a standalone matter (meaning had this not been one of many) respondent would have been sanctioned for his conduct in this matter alone. Since this was filed as a separate charge, it must be considered as such. ALLEGED RULE VIOLATIONS I MISCONDUCT (COUNT III) With respect to the handling of Mr. Brooks' matter, respondent is charged with violations of Rule 1.3 (failure to act with diligence and promptness), Rule 5.3 (failure to properly supervise non-lawyer employees), Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), and Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice). As was mentioned above, unlike certain of the counts, respondent denies outright any rule violations warranting discipline arising from his handling ofthe Brooks matter. As a matter of fact, the committee finds that while the docket report in this matter indicates that there were deficiencies with respect to Mr. Brooks, there is no evidence to indicate that these deficiencies were as the result of any particular failure on respondent's part to act with due diligence in representing Mr. Brooks. In fact, the record reflects that Mr. Blanche was engaged in the active representation of Mr. Brooks, attended multiple hearings with Mr. Brooks and filed amended plans in an attempt to help Mr. Brooks through the bankruptcy process. The committee further finds that the dismissal of Mr. Brooks' Chapter 13 Bankruptcy was directly related to Mr. Brooks' failure to pay his obligations thus preventing confirmation of his planes) as drafted by respondent. As such, with respect to the allegations of Count III, the committee concludes that ODC failed to carry its burden of proof as to the alleged violations by Mr. Blanche of Rules 1.3, 5.3, and 8.4(d). As the committee understands the allegation made by ODC in this count, Count III, concerning respondent's alleged violation of Rule 8.4(c), the allegedly actionable conduct stems from the $ 999 dollar fee application submitted to Judge Dodd, ex parte, relative to Mr. Brooks' case. The implication here is that in light of the $ 250.00 reduction in this case, Mr. Blanche's application should have been reduced by another $ 250.00 and that Mr. Blanche's ex parte "hastily prepared" fee application was submitted to Judge Dodd in the hopes of deceiving the court into awarding a higher fee than Mr. Blanche was entitled to. The committee disagrees with this characterization of the fee application. There was testimony at the hearing that the standard fee in a 16 Chapter 13 bankruptcy case is $ 2,500.00. The fee reduction Ordered by Judge Dodd preceeded the date on which respondent's fee application was submitted and at the time it would appear that Judge Dodd was ruling based on an assumption that the plan would actually be confirmed and the full fee awarded. After the matter was dismissed for reasons having nothing to do with Mr. Blanche, rather than seek a full fee, Mr. Blanche himself limited his fee to $999.00 which is the cut off for having a fee awarded ex parte. The fact that the fee was awarded ex parte however does not mean that it was automatic. As Ms. Johnson and respondent both testified, Judge Dodd still reviews each and every fee application and respondent was well aware of that fact. The fee was awarded and the committee concludes that ODC failed to carry its burden on this instance of alleged misconduct. COUNT IV - THE OBSTRUCTION COUNT Count IV can be disposed of rather easily by the committee. The allegation is that on April 8, 2008 respondent was personally served with a subpoena, issued pursuant to the authority of the Supreme Court of Louisiana, ordering respondent to appear before Disciplinary Counsel at 10:00 A.M. on April 17, 2008 to testify and to produce documents in the investigation into three complaints filed against respondent, including the complaint of William H Brooks (Count III, supra) and the matter of respondent's being permanently barred from bankruptcy court (Count II, supra). Respondent did not appear and has admitted the allegations of misconduct in Count IV. As such, the committee does not address the sufficiency of the violations since they have been admitted outright. COUNT V - THE ARMSTEAD MATTER The final count contained in the Formal Charges involves respondent's representation of one Pamela Armstead. The record in this matter establishes that Pamela Armstead filed a voluntary petition for Chapter 13 bankruptcy on June 13, 2006. (ODC 19). According to the initiating petition, the attorney representing Ms. Armstead was respondent, Mr. Blanche. (See ODC 19, Bates #416). Admitted into evidence as ODC 20 is a letter of representation dated exactly one month later advising Ms. Sally Gilmore of the Travelers of Mr. Blanche's representation of Ms. Armstead in counection with a civil cause of action arising from a motor vehicle accident which occurred on December 15, 2005. What is interesting about the letter of representation is not that it was sent on Mr. Blanche's letterhead, but rather that it was directed to a specific adj uster and references a specific claim number. These facts preponderate in favor of a finding that this was not the first communication had with the Travelers relative to this claim. What this means is that the filing of the bankruptcy and the date on which work was commenced on the civil action were even closer in time to one another than the documents reflect. 17 According to the testimony and the exhibits in evidence, the trustee, Ms. Crawford, became aware of the claim against the Travelers at one of the early meetings in Ms. Armstead's bankruptcy. Thus, as of the date of this meeting, respondent or his office would certainly have been aware of the fact that the Pamela Armstead in bankruptcy and the Pamela Armstead on the civil side were one and the same. The committee makes note of this because respondent at the hearing and in his response to the Formal Charges indicates that he was unaware that these two Pamela Armsteads were the same person. The committee finds respondent's testimony in this regard not credible and further finds that respondent had actual knowledge that he represented Ms. Armstead both in the bankruptcy proceeding and with respect to the civil claim contemporaneously. From this point forward, the facts are not seriously in dispute. There was credible testimony by Ms. Crawford at trial that a packet was sent to Mr. Blanche which would have enabled him to be approved to represent Ms. Armstead in the civil suit with the Bankruptcy Court's approval. The committee finds as a matter of fact based on the record that approval was not sought or approved. Moreover, respondent as an attorney with an active bankruptcy court practice, would have known of the requirement for approval and thus his failure to seek such approval was knowingly done. The committee finds as a matter of fact that a settlement was obtained in the Armstead Civil matter by either Mr. Blanche or his son, Louis, in the amount of $ 14, 000.00 with the Travelers. The committee further finds that when the settlement monies were tendered by the Travelers to Mr. Blanche that he in turn deposited client funds directly into his operating account as opposed to segregating those funds in his client trust account as is required under Rule 1.15. ALLEGED RULE VIOLATIONS I MISCONDUCT (COUNT V) Respondent is charged in this count, Count V, with violations of Rule 1.1(a) (failing to provide competent representation), Rule 1.3 (failure to act with diligence and promptness), Rule 1.15 (failure to properly handle and use funds entrusted to the client), Rule 3A(c) (failure to comply with the bankruptcy court's rules concerning representation of debtors in personal injury cases), Rule 5.3 (failure to properly supervise non-lawyer employees), Rule 8A(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), and Rule 8A(d) (engaging in conduct prejudicial to the administration ofjustice). Each of these is discussed in turn. Rule 1.1(a) states: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for that representation. Rule 1.3 states: 18 A lawyer shall act with reasonable diligence and promptness in representing a client. The committee does not feel that ODC carried its burden with respect to these alleged rule violations. In fact, given the nature of the injuries apparently sustained in the Armstead matter, it would appear that the settlement garnered by respondent's office on the civil claim was an excellent recovery for Ms. Armstead. The committee feels that it was not the recovery obtained that was respondent's downfall but rather the fact that respondent did not obtain permission to represent Ms. Armstead and later failed to properly handle his client's funds. To the extent that the commingling and conversion of funds of Ms. Armstead impacted the bankruptcy proceeding, it is noted by the committee that Ms. Crawford testified at the hearing that Ms. Armstead was not prejudiced in any way insofar as her bankruptcy case was concerned. That being said, respondent has admitted to violating Rules 1.15 and 3.4(c). There is no real question about whether there was a violation as the documents clearly show that Mr. Blanche did not deposit the monies obtained into his client trust account nor did he actually remit the monies to the bankruptcy court. Since there is some interplay between the violations of 1.15, 3.4(c) and 8.4 it is worth highlighting what actually transpired. To this end, the testimony of the Chapter 13 trustee, Ms. Crawford is significant. She testified on this issue as follows: BY MR. OURS: Q. Now, in the Armstead case, you did find out about the lawsuit at the creditors meeting; is that correct? A. Right. Q. Mr. Blanche was present at the creditor's meeting? A. Yes, sir. Q. And you discussed the lawsuit and the bankruptcy with Mr. Blanche at that time? A. Yes. Q. And you subsequently - did you send him the packet offorms? A. Yes. Q. And he's been a bankruptcy attorney for a significant period of time, correct? A. Correct. Q. He knew he had to fill out these forms and enroll in this case, correct? A. Correct. Q. And there came a subsequent period of time where that lawsuit settled. Did the bankruptcy court get their forms back that you sent? 19 A. No. Q. Did the bankruptcy court get any notice of settlement or any documents for him to get the settlement approved? A. No. Q. Did you know it had settled? A. No. [T.207,L.21-T.209,L.3] Not only was respondent not authorized by the bankruptcy court to handle the matter but the settlement was not approved nor even the existence of a settlement communicated to the trustee. It was not until Mr. Blanche brought settlement proceeds to the office that Mr. Crawford was even made aware of the settlement. According to Ms. Crawford: Q. Okay. The settlement proceeds that he [respondent] brought in, that was a check from his trust account? A. No. It was a check from his mother's account. [T.210.L.12-L. 16] The import of this testimony in the committee's opinion is that not only was there commingling of client funds but also a temporary conversion of funds. Had Mr. Blanche preserved the funds, presumably he would have simply written the check from his operating account where he deposited the funds initially. The fact that he had to borrow these funds to make the restitution evidences conversion as well as commingling. Rule 8.4 states that it is misconduct to "[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation" as well as to "[e]ngage in conduct that is prejudicial to the administration ofjustice, "RPC 8.4fc) & fd). Fraud is a suppression of the truth. It is unclear as to why Mr. Blanche ultimately returned the amount of money he did (it does not correspond to either the total settlement or Ms. Armstead's portion) but it is clear that his tendering of these funds to the bankruptcy court as he did is at the very least a misrepresentation of the truth in that these were not in fact Ms. Armstead's funds. As Mr. Blanche testified to later, this was all his doing. As such, with respect to the allegation in Count V that Mr. Blanche failed to supervise a non-lawyer in his office, the committee does not feel that under this count ODC carried its burden. The committee concludes that it was not a non-lawyer that violated the rules with respect to the Armstead matter; but rather respondent himself and as such Rule 5.3 is inapplicable to these facts.. Having found that misconduct occurred, the Committee turned next to the issue of sanction. The Committee examined various Standards from the ABA Standards for Imposing 20 Lawyer Discipline and noted that for some misconduct, if viewed only in isolation, the baseline sanction was less than a period of actual suspension. The Committee stated, however, that because other misconduct standing alone warrants "actual suspension, the appropriate baseline sanction given the totality of the rules violated is actual suspension." The Committee explained how it arrived at a baseline of actual suspension: For example, ODC alleges, and the committee agrees, that the mishandling of the Armstead funds in violation of Rule 1.15 would warrant a baseline sanction of suspension. The applicable standard for that violation would be ABA Standard 4.12. 6 Likewise, ABA Standard 4.42 would apply to the pattem of neglect clearly evident in Count I. Under ABA Standard 4.42 suspension is generally appropriate when a lawyer engages in a pattem of neglect which causes harm to a client. This was clearly the case 6 ABA Standard 4.11 suggests that disbarment is appropriate in instances where there is conversion of funds and the client is harmed. It would appear that Ms. Armstead was not harmed in any way and the committee assumes that this is why ODC has not sought disbarment. here as well. With respect to Count II, respondent's actions would warrant a baseline sanction of suspension under ABA Standard 6.22. Clearly, given the multiple rule violations which warrant at the very least a baseline sanction of actual suspension, the committee can consider and recommend nothing less. The question then becomes given the multiple violations and the pattem of neglect permeating these charges, what should the term ofthe suspension be. The Committee reviewed the jurisprudence cited by ODC in support for a baseline duration of three years, and noted that Mr. Blanche disagreed with that length but did not support his position with any legal authority. The Committee next announced several aggravating factors it had found: pnor disciplinary offenses; a pattern of misconduct; multiple offenses; substantial experience in the practice of law; and lack of cooperation with the disciplinary system. 21 The Committee announced the following mitigating factors: personal or emotional problems, imposition of other penalties or sanctions; absence of a dishonest or selfish motive; sincere remorse; and timely good faith effort to make restitution in the Armstead matter. The Committee expressly rejected Mr. Blanche's suggestion in his testimony that his misconduct should be excused for, as the Committee characterized: "depression and pre- existing substance abuse ...." The Committee noted that there was no medical evidence to support these suggestions. As a final assessment of Mr. Blanche's culpability, the Committee stated: "There is, however, evidence to a finding that petitioner was as a matter of fact having difficulty addressing the problems with his wife but also that he failed to do so for an extended period of time. That being said, the committee feels that, notwithstanding the presence of both aggravating and mitigating factors, that the sanction of three years actual suspension is nonetheless appropriate under the circumstances." THE FORMAL CHARGES (Case Number 05-DB-085) As noted earlier, the Board has already reviewed the record of this case. After rendering a recommendation for discipline, the Supreme Court remanded the case back to the Board for consideration of the misconduct in 05-DB-085 along with the record of any additional charges brought. The additional charges and Committee report (in 08-DB-065) have been reproduced above. To comply with the Court's remand, the formal charges in 05-DB-085 must now again be considered, in order to be placed in context with the other charges. The charges in 05-DB-085 read, in pertinent part, as follows: COUNT I In the latter part of 2003, Brandy Babin, Complainant, received notice that her home was being seized and would be subject to a sheriffs sale on or about January 14,2004. In November of 2003, Complainant met Respondent to assist her in stopping the sheriffs sale of her home. After consultation with Complainant, Respondent recommended filing Chapter 13 bankruptcy to save her home. Complainant did not have adequate payroll documentation and was 22 told to return with the needed documentation. Complainant returned on December 29, 2003 with a deadline fast approaching. Respondent did not meet with Complainant but his staff gave Complainant paperwork for her husband to review and sign. When Complainant returned with her paperwork, she did not meet with Respondent. Despite the exigent circumstances and the looming sheriffs sale, Respondent did not meet with Complainant and failed to file the Chapter 13 bankruptcy. Respondent admits in his response to this office that he did not review Complainant's paperwork until after the sheriffs sale on January 14, 2004. Complainant's home was sold by sheriffs sale on January 14, 2004. Respondent neglected Complainant's matter and failed to act with reasonable diligence in representing his client's interest. Additionally, Respondent failed to keep Complainant reasonably informed of the status of her matter. THE HEARING COMMITTEE REPORT (Case Number 05-DB-085) The hearing committee issued its report on December 8, 2006, finding that the Respondent had violated Rules of Professional Conduct 1.3 and 104. The committee also recommended that Mr. Blanche receive a three month suspension, all deferred, followed by a six month period of supervised probation with the following conditions: (I) during the probation period, Mr. Blanche successfully complete the LSBA's Ethics School Program; and (2) during the probation period, Mr. Blanche submit an office reorganization plan. In reaching its sanction, the committee issued the following findings of fact: "This matter involves Mr. Blanche's representation of his former client, Brandy Babin ("Complainant") and her husband Joseph Babin in a Chapter 13 Bankruptcy proceeding. The Babins met with Respondent on or about November 29, 2003 and explained to him that they had received notice that their home had been seized on November 25, 2003 and would be subject to sheriffs sale on January 14, 2004 pursuant to a petition for executory process filed by Deustche National Bank. Respondent suggested a Chapter 13 Bankruptcy to reorganize the Babins' debt and to stop the sheriffs sale. Assuring the Babins there was sufficient time to stop the sale, Respondent quoted his legal fee and filing costs and informed the Babins that he would not proceed until receipt of the filing fees. The Babins agreed to Respondent's terms and returned to his office on or about December 29, 2003 for a scheduled appointment with his paralegal, at which time, Complainant paid 23 the bankruptcy filing fee and obtained a receipt for same. At this time, Complainant also completed the schedule paperwork and brought the paperwork home for Joseph Babin's signature. On December 30, 2003, Brandy Babin returned all paperwork to Respondent's office. The paperwork was received by one of Respondent's employees, and Ms. Babin had no further communication with Respondent until after the sale of her home. On January 14, 2004, the Babins' home was sold pursuant to the writ of seizure and sale issued by the 21st Judicial District Court. Brandy Babin learned of the sale of her home on January 17, 2004 when a Real Estate agent visited the home for an inspection. Complainant had not been informed by Respondent or anyone from his office that the bankruptcy petition had not been filed and that their home had been sold. On that same day, Respondent met Complainant at her property and represented to her that he could recall the sheriffs sale. After receipt of notice in March 2004 from Deutsche National Bank to vacate the property, Brandy Babin moved." ANALYSIS OF THE RECORD BEFORE THE BOARD (Consolidated Cases, Numbers 08-DB-065 and 05-DB-085) I. The Standard of Review The powers and duties of the Disciplinary Board are defined in Section 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Subsection (G)(2)(a) states that the Board is "to perfonn appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to fonnal charges ... and prepare and forward to the court its own findings, if any, and recommendations." Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of "manifest error." Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts de novo review of the hearing committee's application ofthe Rules of Professional Conduct. In re Hill, 90-DB-004. 24 Here, neither ODC nor Mr. Blanche challenges the findings of the Hearing Committee in 08-DB-065 or in 05-DB-085. 8 An independent review shows that the factual findings of the hearing committee in these two consolidated matters are supported by documentary evidence and live testimony. Therefore, the Board finds that the factual allegations of the fonnal charges, as pleaded, have proven by clear and convincing evidence. Each hearing committee identified the rules which had been violated on the given facts. Violations of the rules identified by the Committee in the second case, 08-DB-065 are: Formal Charges Hearing Committee Found Count I Rule l.l(a)(competence) Proven Rule 1.3(diligence) Proven Rule 1.15(safekeeping Not proven property) Rule 5.3(supervision of Proven nonlawyer assistants) Rule 8.4(c)(fraud, deceit, or Not proven misrepresentation) Rule 8.4(d)(conduct Proven prejudicial to administration of iustice) Count II Rule 4.2(a)(communication Proven (but not warranting with person represented by discipline) counsel) Rule 5.3(supervision of Not Proven nonlawyer assistants) Rule 5.5(unauthorized Proven practice oflaw) Rule 8.4(d)(conduct Proven prejudicial to administration 8 In the first case (05-DB-085), when lodged for the first time for the Board's review, ODC had objected to the Committee's recommended sanction as too lenient. ODC had filed an objection to the hearing committee's report on January 26, 2007, arguing that the committee's sanction (three month suspension, all deferred, followed by a six month period of supervised probation) was too lenient. ODC suggested that the appropriate sanction would be a six month suspension, with all but three months deferred, and an eighteen month period of probation. ODC has not, however, taken issue with the factual findings in the first case. 25 ofjustice) Count III Rule 1.3(diligence) Not proven Rule 5.3(supervision of Not proven nonlawyer assistants) Rule 8A(c)(fraud, deceit, or Not proven misrepresentation) Rule 8A(d)(conduct Not proven prejudicial to administration ofjustice) Count IV 3A(a)(obstructing access to Proven (admitted) evidence) Rule 3.4(c)(disobeying Proven (admitted) rules of a tribunal) Rule 8.1(b) and (c)(failure Proven (admitted) to cooperate witb ODC) Rule 8A(d)(conduct Proven (admitted) prejudicial to administration ofjustice) Count V Rule l.I(a)(competence) Notoroven Rule 1.3(diligence) Not proven Rule l.I 5(safekeeping Proven (admitted) property) Rule 3A(c)(disobeying Proven (admitted) rules of a tribunal) Rule 5.3(supervision of Not proven nonlawyer assistants) Rule 8A(c)(fraud, deceit, or Proven misrepresentation) Rule 8A(d)(conduct Proven prejudicial to administration of iustice) Neither ODC nor Mr. Blanche challenges the findings of violations of the Rules of Professional Conduct as found by the Committee. 9 These Rules are reproduced in 9 ODC qualifies its acceptance oflhe Hearing Committee's conclusions oflaw by stating in ODC's Initial Brief to the Board: "While ODC may have some differences concerning the conclusions of law recommended by the Hearing Committee, those differences to not appear to alter the ultimate outcome of the case, or raise any novel legal issues. ODC's position on the legal conclusions is contained in its prehearing memorandum." (Initial Brief, p. 2). ODC does not qualify its acceptance of the Hearing Committee's findings offact, however (id.), 26 full as Appendix "B" to this Recommendation. A review of the record supports a finding of transgressions of these rules which the Board therefore finds as follows: Rule 1.1 requires that a lawyer provide competent represeutation. Competency consists of the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Similarly, Rule 1.3 requires that a lawyer exercise reasonable diligence in representing a client. The record reflects that Mr. Blanche's bankruptcy practice was so deficient in competence and diligence as to result in court-imposed financial sanctions and/or fee disgorgements some thirty-seven times. After the bankruptcy court "tried [these] different ways of encouraging [Mr. Blanche] ... so that [he] could return to turning out work product and fulfilling the objectives that [he] and [his] clients set out,,,IO Mr. Blanche failed to demonstrate basic competence in his cases. Rule 1.15 requires a lawyer to maintain funds received on behalf of a client or a third person separate from the lawyer's funds in a trust account. Mr. Blanche, however, deposited settlement funds received in the Armstead matter directly into his operating account. As a matter of fundamental fairness within the justice system, Rule 3.4(a) requires that a lawyer not unlawfully obstruct another party's access to evidence. Here, Mr. Blanche received a subpoena to provide evidence regarding three disciplinary complaints. Mr. Blanche admittedly failed to comply, in violation of Rule 3.4(a). and given that the fmdings (rejection of rule violations are closely tied to the findings of fact, ODC has effectively submitted no challenge to the Committee's conclusions regarding rule violations. 10 ODC Exh. 3 (hearing on Rule to Show Cause) bates 254. 27 Another fundamental principle of the justice system is that lawyers shall not knowingly disobey an obligation imposed by a tribunal. See Rule 3.4(c). The subpoena mentioned in the preceding paragraph was issued pursuant to the authority of the Louisiana Supreme Court. Mr. Blanche admittedly failed to comply with the subpoena, in violation of Rule 3.4(c). Lawyers also have an obligation to cooperate with the ODC when it investigates allegations of misconduct. See Rule 8.1(b) and (c). Mr. Blanche admittedly failed to cooperate with the investigation, which in the first instance prompted ODC to seek a subpoena for his testimony, but in the second instance, Mr. Blanche failed to comply with the subpoena, all in violation of Rule 8.l(b) and (c). A lawyer may not communicate with someone about a matter for which the person is represented by another lawyer, pursuant to Rule 4.2. Mr. Blanche knew that Mr. Cruse was represented by another lawyer (Mr. Cruse was represented by Mr. Blanche until Mr. Blanche was suspended from practicing before the bankruptcy court). Even so, Mr. Blanche purported to advise Mr. Cruse regarding the bankruptcy, without the knowledge or consent of Mr. Cruse's new attorney. Rule 5.3 requires that a lawyer ensure that a non-lawyer assistant acts in a way to fulfill the professional obligations of the lawyer. Mr. Blanche's testimony at his disciplinary hearing and at his colloquy with the bankruptcy court indicate that Mr. Blanche understood that his wife, who assisted him greatly in his practice, began experiencing difficulties that impacted her work. Mr. 28 Blanche connected the sharp decline in the quality of his practice with his wife's difficulties. Though he recognized that his wife's difficulties spanned a significant period oftime, Mr. Blanche failed to ensure that basic professional obligations were met, if not by his wife in the work that he supervised, then by himself. Pursuant to Rule 5.5, a lawyer may not practice law in a jurisdiction where the lawyer is unauthorized to do so. Mr. Blanche was suspended from practicing in the u.s. District Court for the Middle District of Louisiana. While suspended, Mr. Blanche advised Mr. Cruse regarding his bankruptcy case which was pending before that court. Mr. Blanche therefore engaged in the unauthorized practice oflaw in violation of Rule 5.5. Rule 8A(c) prohibits a lawyer from engaging in acts of fraud, deceit, or misrepresentation. The Committee noted that once Mr. Blanche was discovered as having negotiated a settlement of Ms. Armstead's personal injury case without the trustee's approval, that Mr. Blanche gave the trustee his own funds but did not recover (or attempt to recover) the funds from Ms. Armstead. The Committee found that it was fraud and misrepresentation to suggest that the funds were Ms. Armstead's. While restitution is favored, the significance ofMr. Blanche's earlier concealment of the source of the funds is that Ms. Armstead was a debtor in a bankruptcy proceeding and she was not entitled to the windfall of those funds. Also, Mr. Blanche engaged in an earlier fraud. By ignoring the trustee's requests to properly enroll as counsel for the bankruptcy trustee and then settling Ms. Armstead's claim without the 29 trustee's knowledge and approval while diverting the settlement money to Ms. Armstead, nnder controlling bankruptcy law, Mr. Blanche attempted a fraud upon the bankruptcy court and upon Ms. Armstead's creditors. Both the bankruptcy court and the creditors are entitled to an accurate picture of the assets of a debtor such as Ms. Armstead. So important is the principle of accurate disclosure of assets that courts have nullified debtors' claims for failing to honor it. See In re Superior Crewboats, Inc., 374 F.3d 330, 334- 335 (5th at Cir. 2004) (when bankruptcy is pending, knowing failure to notify bankruptcy court of potential personal injury claims is gronnds for nullifying the debtor's claims because "intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.,,);ll see also In re Coastal Plains, 179 F.3d 197, 208 (5th Cir. 1999)("the integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets."). 12 Mr. Blanche's concealment of Ms. Armstead's personal injury claims from the bankruptcy court and creditors therefore violated Rule 8A(c). Rule 8.4(d) prohibits a lawyer from engaging III conduct prejudicial to administration of justice. Mr. Blanche's pervasive failures to adhere to basic bankruptcy procedures disrupted the U.S. District Court for the Middle District of Louisiana, which responded by ordering that Mr. Blanche "shall be suspended from practicing in and appearing before the United States Bankruptcy Court for the Middle District of Louisiana for a period of 18 II (quoting Scarano v. Central R.R. Co., 203 F.2d 510, 513 (3d Cir.1953. 12 (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 104 (S.D.N.Y.1996. 30 months,,13 based upon "the recurrence of problems, but, more importantly, [Mr. Blanche's] failure or inability to correct the problems, notwithstanding [the court's] attempt to use a variety of methods to persuade [Mr. Blanche] to alter the way [he] practices so that [he] comply with the bankruptcy code, the bankruptcy rules, the local rules " ..,,14 Based on continued problems of this nature, the bankruptcy court later permanently barred Mr. Blanche from practicing before that court. Mr. Blanche also actively concealed his handling and settlement of Ms. Armstead's personal injury claim from the bankruptcy court, and Mr. Blanche avoided his obligations to cooperate with an ODC investigation and a subpoena issued pursuant to the authority of the Louisiana Supreme Court. Mr. Blanche therefore violated Rule 8.4(d) on these occaSIOns. In the earlier case which the Board has already reviewed (OS-DB-08S), the Board found the following Rule violations: the Board finds that the committee's findings of fact are not manifestly erroneous. Further, the committee correctly found that the Respondent had violated Rules of Professional Conduct 1.3 and 1.4. Despite initially meeting with the Babins about the Chapter 13 petition, he never followed up with his staff concerning the filing of the petition. Consequently, the petition was not filed prior to the sheriffs sale. Such conduct shows that the Respondent failed to act with reasonable diligence and promptness in representing the Babins in violation of Rule 1.3. By failing to adequately communicate with the Babins prior to and after the sheriffs sale of their home, the Respondent violated Rule 1.4. II. THE APPROPRIATE SANCTION A. Application of Rule XIX, 10(C) Factors 13 ODC Exh. 4 (court-ordered letter from Mr. Blanche to ODC reporting his own misconduct, with attached Order), bates 277. 14 ODC Exb. 3 (hearing on Rule to Show Cause) bates 271. 31 Louisiana Supreme Court Rule XIX, IO(C) states that in imposing a sanction after a finding of lawyer misconduct, the Court or Board shall consider the following factors: 1. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2. whether the lawyer acted intentionally, knowingly, or negligently; 3. the amount of actual or potential injury caused by the lawyer's miscollduct; and 4. the existence of any aggravating or mitigating factors. Mr. Blanche has violated duties owed to his clients, the public, the legal system, and to the profession. In the many acts covered by the formal charges, Mr. Blanche's conduct was both knowing and intentional. For example, much of Count I deals with the decline in Mr. Blanche's bankruptcy practice, and he admittedly was aware of the decline and attributed it to his wife's inability to help him with his practice as she once had. Therefore, even though such decline in the quality of a lawyer's practice is often the result of a lawyer's negligence, Mr. Blanche's admissions underscore that his misconduct was at least knowing. In the case of the Armstead matter, however, Mr. Blanche's misconduct was intentional. The record reflects that the trustee informed Mr. Blanche of the requirement for him to obtain approval to seek recovery for Ms. Armstead's personal injury claim. Mr. Blanche not only failed to complete the packet of papers the trustee had sent him, but Mr. Blanche actually settled the case without the trustee's permission. IS Additionally, Mr. Blanche communicated with a former client represented by new counsel, and Mr. Blanche advised the client on a bankruptcy matter. Mr. Blanche could no longer represent or advise the former client because Mr. Blanche was suspended from 15 Mr. Blanche had claimed that his son Lewis Blanche, an attorney now on disability inactive status (In re Lewis Blanche, 05-B-0116 (La. 1/26/05) 892 So.2d 580), had settled the Armstead case without Mr. Blanche's knowledge. Transcript, p. 260, 310 (Testimony of Fred Blanche). The Committee rejected that claim as incredible; the Board does the same. The lack of credibility is demonstrated by Mr. Blanche's admission that he helped cash a settlement check. Transcript, p. 265 (Testimony of Fred Blanche). 32 practicing before the bankruptcy court. He was also prohibited from communicating with the client about the matter because the client was represented by new counsel, whom Mr. Blanche had not consulted in advance. By their very nature, these are intentional acts of misconduct. At least two client victims of Mr. Blanche's misconduct (the Babins in case 05-0B- 085) have suffered financial losses for paying for services never rendered. As reflected in the record relating to Count I of 08-0B-065, numerous other clients were at least delayed in the confirmation of their bankruptcy cases due to Mr. Blanche's inadequate bankruptcy representation. The record reflects several aggravating factors surrounding Mr. Blanche's misconduct. In case 05-0B-085, the Board has already identified aggravating factors as: "vulnerability of victims and substantial experience in the practice oflaw." Mr. Blanche was admitted to practice in the year 1971. The record supports the Committee's findings of aggravating factors in 08-0B-065, namely: prior offenses; pattern of misconduct; multiple offenses; substantial experience in the practice of law; and lack of cooperation with the disciplinary process. The Committee in 08-0B-065 did not mention vulnerable victims in its report. But, just as the Board found the two bankruptcy clients in 05-0B-085 to be vulnerable, the scores of bankruptcy clients involved in the precipitous decline in Mr. Blanche's practice as described in 08-0B-065 are by nature, vulnerable. The Board therefore finds that Mr. Blanche's misconduct in 08-0B-065 was marked by the aggravating circumstance of being committed against vulnerable victims. The mitigating factors the Board already identified in case 05-0B-085 were: the absence of a prior disciplinary record; and remorse. In case 08-0B-065, the record supports 33 the Committee's findings of these mitigating factors: personal or emotional problems; imposition of other penalties or sanctions; absence of a dishonest or selfish motive; and timely good faith effort to make restitution (in the Armstead matter). The Committee also found a mitigating factor of remorse, but that finding is inconsistent with the Committee's finding that Mr. Blanche was not telling the truth in his swom explanation of the Armstead matter;16 the Board therefore declines to find remorse in matter 08-0B-065. B. The ABA Standards and Case Law The Board is now expressly tasked by the Supreme Court with looking at the sanction issue afresh, and also tasked with considering the totality of the misconduct in the two cases which have previously only been considered independently. (For reference, the Board's previous recommendation regarding the misconduct charged in 05-0B-085 is attached as Appendix C). The Committee in 08-0B-065 correctly identified that Standards 4.12 and 4.42 of the ABA Standards for Imposing Lawyer Sanctions apply to neglect, which comprised much of Mr. Blanche's misconduct. Under Standards 4.12 and 4.42, which are predicated upon neglect with injury or potential injury to a client, the baseline sanction is a suspension: 4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. 4.42 Suspension is generally appropriate when: a. a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or b. a lawyer engages in a pattem of neglect causes injury or potential injury to a client. 16 See Hearing Committee Rept., p. 22. 34 However, Mr. Blanche's improper representation and settlement of Ms. Armstead's personal injury claim also appears to meet the thresholds of Standard 6.21: 6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding. On the facts of Mr. Blanche's case, the thresholds of 6.21. appear to be met as follows. After the trustee reminded Mr. Blanche of the need to seek the trustee's written approval to press forward with Ms. Armstead's personal injury claim,17 Mr. Blanche disregarded rules of the bankruptcy court well known to him, which required him to obtain the trustee's approval to seek recovery for a debtor's personal injury claim. I8 Both Mr. Blanche and Ms. Armstead benefitted from Mr. Blanche settling the case outside of the bankruptcy case, because they both received thousands of dollars. Though Mr. Blanche made restitution, his earlier actions had the potential to cause serious i ~ u r y to the settling party by at least raising the question whether the settlement was valid. His actions also had the potential to seriously interfere with the bankruptcy proceeding as the trustee and creditors predictably would have tried to recover the money which should have been considered as part of Ms. Armstead's bankruptcy case. Last but certainly not least, assuming Mr. Blanche obtained Ms. Armstead's approval to settle the personal injury case, that approval could have caused her bankruptcy to be dismissed for concealing assets of the bankruptcy estate. 19 17 Transcript of Hearing, p. 203-208 (Testimony of Annette Clayton Crawford). 18 See, e.g., Local Rules of Bankruptcy Court for Middle District of Louisiana, Rule 2003-2 (Cooperation with Trustee)(" During the administration of the case, the trustee may direct the debtor, debtor's counsel, or both to turn over to the trustee documents or other information, or to amend documents in the case record."); see also id., Rule 2014-I(Employment ofProfessionals)("(a) General Services for Trustee or Chapter II Debtor-in- Possession. A trustee or a chapter II debtor-in-possession may apply ex parte to employ a professional to p,erform general services on behalf of the estate."). 9 See II U.S.C. 727: 35 Under the ABA Standards, therefore, either suspension or disbannent is supportable. Louisiana jurisprudence also indicates that the appropriate sanction in this type of matter is either a suspension or disbannent. For example, ODC cited and the Committee relied upon In re Brown, 2004-119 (La. 1/14/2005), 892 So.2d 1, in which the respondent neglected several matters (including a bankruptcy matter), and failed to cooperate with ODC in its investigation. The Court imposed a three year suspension, noting that "in cases that involve several clients, we have generally imposed lengthy suspensions from the practice of law, with no portion of the suspension deferred; in some instances, we have imposed disbarment." The Court explained that in light of the multiple offenses, "[t)he actual suspension of one year and one day that has been recommended by the board is far too lenient for respondent's misconduct, even considering the sole mitigating factor recognized by the board." Here, before accounting for aggravating and mitigating circumstances, the rationale in Brown counsels for at least a three year suspension. Mr. Blanche knowingly disregarded his obligations in numerous bankruptcy filings. Mr. Blanche also committed intentional misconduct when he engaged in the unauthorized practice of law, when he spoke to a represented party without counsel's knowledge, and when he settled the Armstead matter without proper authority. The Court's observation in Brown that some cases of neglect of matters client may warrant disbarment arguably might apply here, where Mr. Blanche also committed additional and unquestionably intentional, serious misconduct. (a) The court shall grant the dehtor a discharge, unless- (2) the dehtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has perruitted to be transferred, removed, destroyed, mutilated, or concealed- (B) property of the estate, after the date of the filing of the petition; 36 In addition to citing Brown, ODC likens this case to In re Wharton, 03-B-1816 (La. 10/17/2003) 872 So.2d 459. The respondent in Wharton "failed to communicate with her clients, neglected the legal matters she was retained to handle, failed to refund unearned legal fees, and failed to cooperate with the ODC in its investigation." The Court again noted that in similar cases, the full array of sanctions "ranging from disbarment to fully deferred suspensions" had been imposed. Suggesting that the lack of a prior disciplinary record was negated by a pattern of misconduct and indifference to making restitution, the Court imposed a three year suspension. As to aggravating and mitigating factors surrounding Mr. Blanche's numerous acts of misconduct, under a balancing approach, the aggravating factors outweigh mitigating factors. The number of vulnerable victims described in Count I of 08-DB-065 (clients in sixty-five different bankruptcy cases) and Mr. Blanche's blatant failure to testify when subpoenaed, are aggravating circumstances that loom especially large. Notably, Mr. Blanche acknowledges having a substance abuse problem, including the use of illegal drugs. However, he has not demonstrated a "meaningful and sustained period of successful rehabilitation" as required by ABA Standard 9.32(i)20 for his substance abuse to be considered a mitigating factor. In fact, Mr. Blanche appears to have rejected ODC's suggestion that Mr. Blanche participate in a monitoring program. 21 20 ABA Standard 9.32(i) indicates the mitigating factor of mental disability or chemical dependency may be found when: (I) there is medieal evidenee that the respondent is affeeted by a ehemieal dependeney or mental disability; (2) the ehemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the miseonduet and recurrenee ofthat miseonduet is unlikely. 21 See ODC Exh. 21 (Letter from Mr. Blanehe to ODC, exeerpted): 37 Given that the aggravating factors well outweigh mitigating factors, under the rationale in Brown and Wharton, there is no justification to deviate downward from the baseline of a three year suspension. Because Mr. Blanche was placed on interim suspension for much of the conduct at issue in this case, the Board recommends that the suspension be retroactive to the interim suspension which began on February 13,2008. 22 The Board reiterates that portion of its previous Recommendation in 05-DB-085, that Mr. Blanche should make restitution of the fees he charged Mr. and Mrs. Babin. As a final matter relating to sanction, it should be noted that ODC urges that the Board recommend Mr. Blanche be evaluated by the Lawyer's Assistance Program (LAP) and encouraged to execute a LAP contract. As noted earlier, Mr. Blanche testified that he has had substance abuse problems. 23 In light of this testimony, the Board agrees with ODC's position. CONCLUSION The records of these two consolidated cases indicate that Mr. Blanche knowingly disregarded his obligations in numerous bankruptcy filings. Mr. Blanche also committed intentional misconduct when he engaged in the unauthorized practice of law, when he spoke to a representedparty without counsel's knowledge, and when he settled the Armstead matter without proper authority. When I left your office after our last visit, I had every intention of submitting to a urinalysis; however, when I called The First Step for directions, I was told to bring $50 to pay for the testing. I did not have $50 at the time so I did not go. I have since reconsidered and am not going to be tested voluntarily. (Emphasis added). 22 See ODC Exh. 2, bates 245 (Order of Feb. 13,2008). 23 However, he has previously refused monitoring and the Committee properly refused to give any mitigating weight to Mr. Blanche's substance abuse problems because he has not shown that he has been able to maintain a meaningful and sustained recovery. 38 The applicable ABA Standards and analogous cases support a sanction of a three year suspension from the practice oflaw. The Board recommends that the suspension commence retroactively to Mr. Blanche's interim suspension. The Board reiterates that portion of its previous recommendation in 05-DB-085 that Mr. Blanche make restitution of the fees he charged Mr. and Mrs. Babin. Because Mr. Blanche has admitted to a substance abuse problem in the context of this disciplinary case, but he has already refused monitoring for further substance abuse, the Board recommends that Mr. Blanche be evaluated by the Lawyer's Assistance Program (LAP) and encouraged to execute a LAP contract. Mr. Blanche should also be assessed with all costs and expenses of these disciplinary proceedings. LOUISIANA ATTORNEY DISCIPLINARY BOARD William D. Aaron, Jr. Charles C. Beard, Jr. John T. Cox, Jr. Kim Leija Edwin G. Preis, Jr. R. Steven Tew __ ...::.... __ -- _ Dow M. Edwards FOR THE ADJUDICATIVE COMMITTEE Stephen F. Chiccarelli - Recused. George L. Crain - Dissents with reason. 39 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: FRED A. BLANCHE, III NUMBER 05-DB-085 c/w 08-DB-065 DISSENT I find that the magnitude of the offences and the lack of mitigating factors does not warrant a reduction from disbarment. By: b.. ~ t : 1. ~ , . , . " ; , , . , I ().., EORGE L. ('l;RAIN ADJUDICATIVE COMMITTEE 40 Appendix A PROCEDURAL HISTORY (05-DB-085) Fonnal charges, consisting of one count, were filed by the Office of Disciplinary Counsel ("ODC") against the Respondent, Fred A. Blanche, III, on December 8, 2005. In the charges, ODC alleges that the Respondent violated Rules of Professional Conduct 1.3 (lack of diligencei 4 and 1.4 (lack of communicationi 5 in connection with his representation of his clients, Brandy and Joseph Babin, in a Chapter 13 bankruptcy proceeding. The charges were served on the Respondent, via certified mail, on December 19,2005. The Respondent filed a response to the fonnal charges on January 4, 2006, in which he states that he denies that he "personally neglected the Babins' file or failed to act with reasonable diligence in representing them." He also denied that he "failed to keep Mrs. Babin reasonably informed about the status of the matter." This matter was then scheduled for hearing before Hearing Committee #30 on March 20, 2006 in Baton Rouge, Louisiana. The Respondent filed a motion to stay the hearing on January 24, 2006 and a memorandum in support thereof on February 13, 2006. ODC filed an objection to Respondent's motion on January 30, 2006 and a memorandum in support thereof on February 6, 2006. The hearing committee denied the Respondent's motion to stay on February 9, 2006, finding that the Respondent had not stated sufficient grounds in his motion to stay the proceeding. 24 The applicable version ofRnle 1.3 provides that "a lawyer shall act with reasonable diligence and promptness in representing a client." 25 The applicable version of Rule 1.4 provides that "a lawyer shall keep a client reasonably informed about the statns ofa matter and promptly comply with reasonable requests for infonnation;" and (b) "The lawyer shall give the client sufficient infonnation to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so." 41 On February 23, 2006, the hearing committee chair submitted an amended order, staying the proceeding until May 1, 2006. On March 3, 2006, the Board Administrator received, via facsimile transmission from ODC, an amended response to the formal charges in which the Respondent admitted that "under the facts and circumstances of this case, the practice deficiencies that characterized my non-handling of Mrs. Babin's case were unacceptable and the resulting charge of a disciplinary violation was completely and properly justified." The Respondent concluded in his amended response that "1 greatly regret that 1 committed this violation. 1 long ago apologized to Brandy Babin and 1 apologize to the Committee and to the Office of Disciplinary Counsel." Following a telephone conference between the parties and the hearing committee chair on March 6, 2006, the Respondent, noting that he had violated Rules 1.3 and 1.4, made a formal request that a hearing in mitigation be held. The Respondent then filed a proposed stipulation on May 1, 2006. ODC filed a motion to reset the committee hearing on July 14, 2006. ODC noted in its motion that in a communication dated June 13, 2006, the Respondent had disavowed a violation of Rule 1.3 as previously admitted. The matter was then rescheduled for hearing on October 16, 2006. ODC filed its pre-hearing memorandum on October 5, 2006, in which it suggested that the Respondent receive a suspension ranging in length from three months to one year and a day, perhaps with a portion of the suspension deferred. ODC also recommended that following any action portion of suspension or in the event that the hearing committee recommended a deferred suspension, that the Respondent be placed on probation for eighteen months, subject to the requirement that he successfully complete the LSBA's Ethics School Program and 42 attend additional CLE in law office management. The hearing was held as scheduled on October 16, 2006 in Baton Rouge, Louisiana. On December 8, 2006, the hearing committee issued its report, finding that the Respondent had violated Rules of Professional Conduct 1.3 and 1.4 and recommending that the Respondent receive a three month suspension, all deferred, followed by a six month period of supervised probation with the following conditions: (I) during the probation period, Respondent successfully complete the LSBA's Ethics School Program; and (2) during the probation period, Respondent submit an office reorganization plan. ODC filed an objection to the hearing committee's report on January 26, 2007, arguing that the committee's sanction was too lenient. ODC suggests in its objection that the appropriate sanction is a six month suspension, with all but three months deferred, and an eighteen month period of probation with the committee's recommended conditions. On May 3, 2007, Deputy Disciplinary Counsel G. Fred Ours, filed a "Memorandum to the Disciplinary Board," in which he states that ODC's objection to the sanction is fully set forth in its brief filed on January 26, 2007. After several continuances, this matter was set for oral argument before Panel "A" of the Disciplinary Board on July 12,2007. The Board issued a Recommendation on January 14, 2008 that Mr. Blanche be suspended from the practice of law for three months, with all but thirty days deferred, subject to supervised probation. The Board also recommended that Mr. Blanch reimburse Brady and Joseph Babin for the fee they paid him to file their bankruptcy proceeding. 43 Appendix B TEXT OF RULES OF PROFESSIONAL CONDUCT Count I of the formal charges deals with conduct between April 1, 2003 and May 16, 2007, a period of time covered by two versions of Rule 1.1. Therefore, both versions are reproduced, beginning with the most recent version: RULE 1.1. COMPETENCE (amended 4/15/2006) (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer is required to comply with the minimum requirements of continuing legal education as prescribed by Louisiana Supreme Court rule. (c) A lawyer is required to comply with all of the requirements of the Supreme Court's rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address, and proper disclosure of trust account information or any changes therein. RULE 1.1. COMPETENCE (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer is required to comply with the minimum requirements of continuing legal education as prescribed by Louisiana Supreme Court rule. RULE 1.3. DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. RULE 1.15. SAFEKEEPING PROPERTY (amended 3/1/2004) (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own 44 property. Funds shall be kept in a separate account maintained in a bank or similar institution in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. *** (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. For purposes of this rule, the third person's interest shall be one of which the lawyer has actual knowledge, and shall be limited to a statutory lien or privilege, a final judgment addressing disposition of those funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. *** (f) A lawyer shall create and maintain an interest-bearing trust account for clients' funds .... RULE 3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL (amended 3/112004) A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counselor assist another person to do any such act; *** (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; *** RULE 4.2. COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL 45 (amended 3/1/2004) In representing a client, a lawyer shall not communicate about the subject of the representation with: (a) a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Count I of the formal charges deals with conduct between April 1, 2003 and May 16, 2007, a period of time covered by two versions of Rule 5.3. Therefore, both versions are reproduced, begiuning with the most recent version: RULE 5.3. RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS (amended 311/2004) With respect to a non-lawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations ofthe lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS 46 With respect to a non-lawyer employed or retained by or associated with a lawyer: (a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) A lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) The lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RULE 8.4. MISCONDUCT (amended 3/1/2004) It is professional misconduct for a lawyer to: *** (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) Engage in conduct that is prejudicial to the administration ofjustice; *** 47 Appendix C DISCIPLINARY BOARD'S PREVIOUS RECOMMENDATION IN 05-DB-085 (BEFORE REMAND AND CONSOLIDATION WITH 08-DB-065) This is a disciplinary proceeding based on the filing of formal charges against the Respondent, Fred A. Blanche, III, by the Office of Disciplinary Counsel ("ODC"). For reasons stated below, the Disciplinary Board recommends that the Respondent be suspended from the practice of law for a period of three months, with all but thirty days deferred. Following the active period of suspension, the Board further recommends that the Respondent be placed on a six month period of supervised probation during which time a probation monitor will monitor his law practice. The Board also recommends that, if not already completed, the Respondent reimburse Brady and Joseph Babin for the fee they paid to him to file their bankruptcy proceeding. Additionally, the Board recommends that the Respondent be assessed with all costs and expenses of these proceedings. PROCEDURAL HISTORY Formal charges, consisting of one count, were filed by ODC against the Respondent on December 8, 2005. In the charges, ODC alleges that the Respondent violated Rules of Professional Conduct 1.3 (lack of diligence)[l] and 1.4 (lack of communication)[2] in connection with his representation of his clients, Brandy and Joseph Babin, in a Chapter 13 bankruptcy proceeding. The charges were served on the Respondent, via certified mail, on December 19, 2005. The Respondent filed a response to the formal charges on January 4, 2006, in which he denies that he "personally neglected the Babins' file or failed to act with reasonable diligence in representing them." He also denies that he "failed to keep Mrs. Babin 48 Appendix C, Board's Previous Reconnnendation in 05-DB-085 reasonably informed about the status of the matter." See January 4,2006 Response to Formal Charges filed by Respondent, p. 2. This matter was then scheduled for hearing before Hearing Committee #30 on March 20, 2006 in Baton Rouge, Louisiana. The Respondent filed a motion to stay the hearing on January 24, 2006 and a memorandum in support thereof on February 13,2006. ODC filed an objection to Respondent's motion on January 30, 2006 and a memorandum in support thereof on February 6, 2006. The hearing committee denied the Respondent's motion on February 9, 2006, finding that the Respondent had not stated sufficient grounds in his motion to warrant a stay of the proceedings. On March 3, 2006, the Board Administrator received, via facsimile transmission from ODC, an amended response to the formal charges in which the Respondent admitted that "under the facts and circumstances of this case, the practice deficiencies that characterized my non-handling of Mrs. Babin's case were unacceptable and the resulting charge of a disciplinary violation was completely and properly justified." The Respondent concluded in his amended response that "I greatly regret that I committed this violation. 1 long ago apologized to Brandy Babin and I apologize to the Committee and to the Office of Disciplinary Counsel." See March 3, 2006 Amended Response of Respondent. On the same date, the hearing committee chair issued an amended order which was dated February 23, 2006, staying the proceeding until May I, 2006. Following a telephone conference between the parties and the hearing connnittee chair on March 6, 2006, the Respondent made a formal request that a hearing in mitigation be held, noting that he had violated Rules 1.3 and 1.4. 49 Appendix C, Board's Previons Recommendation in 05-DB-085 The Respondent then filed a proposed stipulation on May 1,2006. On July 14,2006, ODC filed a motion to reset the committee hearing. ODC noted in its motion that in a communication dated June 13, 2006, the Respondent had disavowed a violation of Rule 1.3 as previously admitted. The matter was then rescheduled for hearing on October 16, 2006. ODC filed its pre-hearing memorandum on October 5, 2006, in which it suggested that the Respondent receive a suspension ranging in length from three months to one year and a day, perhaps with a portion of the suspension deferred. ODC also recommended that following any active portion of suspension or in the event that the hearing committee recommended a deferred suspension, that the Respondent be placed on probation for eighteen months, subject to the requirement that he successfully complete the LSBA's Ethics School Program and attend additional CLE in law office management. The hearing was held as scheduled on October 16,2006 in Baton Rouge, Louisiana. On December 8, 2006, the hearing committee issued its report, finding that the Respondent had violated Rules of Professional Conduct 1.3 and 1.4 and recommending that the Respondent receive a three month suspension, all deferred, followed by a six month period of supervised probation with the following conditions: (l) during the probation period, Respondent successfully complete the LSBA's Ethics School Program; and (2) during the probation period, Respondent submit an office reorganization plan. ODC filed an objection to the hearing committee's report on January 26, 2007, arguing that the committee's sanction was too lenient. ODC suggests in its objection that the appropriate sanction is a six month suspension, with all but three months deferred, and an eighteen month period of probation with the committee's recommended conditions. On May 50 Appendix C, Board's Previous Recommendation in 05-DB-085 3, 2007, ODC filed a "Memorandum to the Disciplinary Board," in which it reiterates its objection to the sanction as set forth in its brief filed on January 26, 2007. After several continuances, oral argument before Panel "A" of the Disciplinary Board was held on July 12, 2007. Deputy Disciplinary Counsel G. Fred Ours appeared on behalf of ODC. The Respondent did not appear. THE FORMAL CHARGES The formal charges in this matter read, in pertinent part, as follows: COUNT I In the latter part of 2003, Brandy Babin, Complainant, received notice that her home was being seized and would be subject to a sheriffs sale on or about January 14, 2004. In November of2003, Complainant met Respondent to assist her in stopping the sheriffs sale of her home. After consultation with Complainant, Respondent recommended filing Chapter 13 bankruptcy to save her home. Complainant did not have adequate payroll documentation and was told to return with the needed documentation. Complainant returned on December 29, 2003 with a deadline fast approaching. Respondent did not meet with Complainant but his staff gave Complainant paperwork for her husband to review and sign. When Complainant returned with her paperwork, she did not meet with Respondent. Despite the exigent circumstances and the looming sheriffs sale, Respondent did not meet with Complainant and failed to file the Chapter 13 bankruptcy. Respondent admits in his response to this office that he did not review Complainant's paperwork until after the sheriffs sale on January 14, 2004. Complainant's home was sold by sheriffs sale on January 14, 2004. 51 Appendix C, Board's Previous Recommendation in 05-DB-085 Respondent neglected Complainant's matter and failed to act with reasonable diligence in representing his client's interest. Additionally, Respondent failed to keep Complainant reasonably informed of the status of her matter. THE HEARING COMMITTEE'S REPORT As noted above, the hearing committee issued its report on December 8, 2006, finding that the Respondent had violated Rules of Professional Conduct 1.3 and 1.4. The committee also recommended that the Respondent receive a three month suspension, all deferred, followed by a six month period of supervised probation with the following conditions: (I) during the probation period, Respondent successfully complete the LSBA's Ethics School Program; and (2) during the probation period, Respondent submit an office reorganization plan. In reaching its sanction, the committee issued the following findings offact: "This matter involves Mr. Blanche's representation of his former client, Brandy Babin ("Complainant") and her husband Joseph Babin in a Chapter 13 bankruptcy proceeding. The Babins met with Respondent on or about November 29, 2003 and explained to him that they had received notice that their home had been seized on November 25, 2003 and would be subject to sheriffs sale on January 14, 2004 pursuant to a petition for executory process filed by Deustche National Bank. Respondent suggested a Chapter 13 Bankruptcy to reorganize the Babins' debt and to stop the sheriffs sale. Assuring the Babins there was sufficient time to stop the sale, Respondent quoted his legal fee and filing costs and informed the Babins that he would not proceed until receipt of the filing fees. The Babins agreed to Respondent's terms and returned to his office on or about December 29, 2003 for a scheduled appointment with his paralegal, at which time, Complainant paid the bankruptcy filing fee and obtained a receipt for same. At this time, Complainant also completed the schedule paperwork and brought the paperwork home for Joseph Babin's signature. On December 30, 2003, Brandy Babin returned all paperwork to Respondent's office. The paperwork was received by one of Respondent's employees, and Ms. Babin had no further communication with Respondent until after the sale of her home. On 52 Appendix C, Board's Previous Recommendation in 05-DB-085 January 14, 2004, the Babins' home was sold pursuant to the writ of seizure and sale issued by the 21 st Judicial District Court. Brandy Babin learned of the sale of her home on January 17, 2004 when a Real Estate agent visited the home for an inspection. Complainant had not been informed by Respondent or anyone from his office that the bankruptcy petition had not been filed and that their home had been sold. On that same day, Respondent met Complainant at her property and represented to her that he could recall the sheriffs sale. After receipt of notice in March 2004 from Deutsche National Bank to vacate the property, Brandy Babin moved." Based upon these factual findings, the committee then determined that the Respondent had violated the Rules of Professional Conduct as charged. In determining the appropriate sanction, the committee examined the Rule XIX, Section W(C) factors, finding that the Respondent had violated a duty owed to his client and to the profession. The committee also found that the Respondent's conduct was negligent and resulted in injury to Mrs. Babin. The committee determined that the aggravating factors of vulnerability of victim and substantial experience in the practice of law were presentPJ The mitigating factors of absence of a disciplinary record and remorse were also noted by the committee. The committee also relied upon ABA Standards for Imposing Lawyer Sanctions, Standard 4.42 in determining its sanction. This standard indicates that a suspension is appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. ANALYSIS I. The Standard Of Review The powers and duties of the Disciplinary Board are defined in Section 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Subsection (G)(2)(a) states that the Board is "to perform appellate review functions, consisting of review 53 Appendix C, Board's Previous Recommendation in 05-DB-085 of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges ... and prepare and forward to the court its own findings, if any, and recommendations." Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of "manifest error." Arceneaux v. Domingue, 365 So.2d 1330 (La.l978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee's application of the Rules of Professional Conduct. In re Hill, 90-DB-004. Here, the Board finds that the committee's findings of fact are not manifestly erroneous. Further, the committee correctly found that the Respondent had violated Rules of Professional Conduct 1.3 and 1.4. Despite initially meeting with the Babins about the Chapter 13 petition, he never followed up with his staff concerning the filing of the petition. Consequently, the petition was not filed prior to the sheriffs sale. Such conduct shows that the Respondent failed to act with reasonable diligence and promptness in representing the Babins in violation of Rule 1.3. By failing to adequately communicate with the Babins prior to and after the sheriffs sale of their home, the Respondent violated Rule 1.4. II. The Appropriate Sanction a. The Rule XIX, Section lO(c) Factors Louisiana Supreme Court Rule XIX, Section 10(C) states that in imposing a sanction after a finding ofiawyer misconduct, the Court or Board shall consider the following factors: (I) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of actual or potential injury caused by the lawyer's misconduct; and 54 Appendix C, Board's Previous Recommendation in 05-DB-085 (4) the existence of any aggravating or mitigating factors. In the matter at hand, the Respondent has violated the duties he owed to his clients, Mr. and Mrs. Babin. His conduct was negligent, and the Babins sustained actual and irreparable injury, the loss of their home. The aggravating factors present include vulnerability of victims and substantial experience in the practice of law. Mitigating factors include absence of a prior disciplinary record and remorse. b. ABA Standards and Case Law The committee correctly relied upon Standard 4.42 in determining that the baseline sanction in this matter is a suspension. The Respondent knowingly failed to complete services that he was hired to perform for the Babins and caused injury to befall them. Pertinent jurisprudence indicates that the range of sanction imposed for similar matters has spanned from a three month suspension, all deferred, along with probation, to a one year and one day suspension. For example, in the case of In re Jones, 2000-B-2765 (La. 2/21/01); 779 So.2d 712, the respondent was hired by a client to handle her divorce and custody proceeding. When the client inquired about the status of her case, the respondent advised her that the divorce petition had been filed. In fact, the respondent had not filed the petition for divorce as he represented to the client, and he did not file the petition until weeks later. Respondent also failed to relay accurate information about the case to his client or failed to respond to her requests for information. Id. at 713-14, n. 3. The respondent was charged by ODC with several violations of the Rules of Professional Conduct, including Rules 1.3 and 1.4. The Court later determined that these rules had been violated. Id. at 714. 55 Appendix C, Board's Previous Recommendation in 05-DB-085 In determining the appropriate sanction in this matter, the Court noted that the client had not suffered irreparable harm. The Court determined that the only significant aggravating factor present was the respondent's substantial experience in the practice of law. The Court found that this factor was offset by the respondent's lack of any disciplinary record during his legal career. The Court also noted that although not "strictly a mitigating factor," the respondent also showed a willingness to participate in fee arbitration with his former client. Id. at 715. Under these circumstances, the Court imposed a ninety day suspension, all deferred, followed by a one year period of supervised probation with conditions. Id In In re Jackson, 2002-2764 (La. 4/9/03); 842 So.2d 359, an individual named Lee Morris Brown retained an attorney to initiate medical malpractice proceedings. The attorney terminated the representation in March of 1997 and advised Mr. Brown of the prescription deadline. Within days, Mr. Brown contacted Mr. Jackson and requested his review of the file. The records were timely forwarded to Mr. Jackson, and Mr. Brown and Mr. Jackson communicated by telephone on several occasions. Mr. Brown and Mr. Jackson spoke on the final day to file suit but Mr. Jackson failed to act. Mr. Jackson later filed suit after the deadline had passed. The malpractice suit was dismissed as prescribed. Id at 360. ODC filed one count of formal charges alleging violations of Rules 1.3 and 1.4. The Louisiana Supreme Court found that the Rules of Professional Conduct had been violated as charged. The Court noted that the respondent's actions had resulted in actual injury to Mr. Brown, causing him to lose his right to assert his claims in the underlying litigation. Id at 362. The Court suspended Mr. Jackson for six months, with three months deferred. Following the active period of his suspension, Mr. Jackson was also placed on probation for 56 Appendix C, Board's Previous Recommendation in 05-DB-085 a period of one year, upon the condition that he complete the Louisiana State Bar Association's Ethics School Program. Id. at 363. In In re Sumpter, 2006-0576 (La. 6/02/06); 931 So.2d 347, the respondent was retained by a client to file a Chapter 7 bankruptcy petition. By May of 2000, Sumpter had received all attorney's fees and filing costs. He instructed the client not to pay any bills that were to be discharged. In January of 2001, the respondent had obtained the client's signature on the petition, but failed to file the petition. Ten months later, the client requested a status report on the bankruptcy, and she then learned the petition had not been filed. The client completed additional paperwork and received the respondent's assurance that the petition would be filed. Thereafter, the client again requested a status report and was told by the respondent that the petition had been filed. The client later learned that the respondent never filed her bankruptcy petition. Id. at 348. ODC filed formal charges against the respondent, alleging numerous violations of the Rules of Professional Conduct including violations of Rules 1.3 and 1.4. The disciplinary case proceeded as a deemed admitted matter. After finding that violations of Rules 1.3, 1.4, 1.5, 1.16 and 8.4 were present, the Louisiana Supreme Court also found that significant mitigating factors were present. Id. at 351. The Supreme Court suspended the respondent for one year and one day, all deferred, conditioned upon one year of unsupervised probation with conditions. Id. Finally, in In re Carreras, 2000-1094 (La. 6/16/00); 765 So.2d 321, the respondent was retained to initiate bankruptcy proceedings on behalf of a client. She was paid $420.00 by the client. She later neglected to institute any bankruptcy proceedings, failed to communicate 57 Appendix C, Board's Previous Recommendation in 05-DB-085 with the client and failed to provide an accounting to the client. Further, Ms. Carreras failed to return the unearned portion of the fee. Id at 322. ODC filed formal charges against Ms. Carreras, alleging misconduct in violation of Rules 1.3, 1.4 and 1.5. The case proceeded as a deemed admitted matter. The Court found that the respondent had violated the rules as charged and noted that the respondent had an "apparent disregard for her professional obligations in this state, as evidenced by her failure to participate in these proceedings and her failure to pay her bar dues/disciplinary assessment or fulfill her mandatory continuing legal education responsibilities." The Louisiana Supreme Court suspended Ms. Carreras for a period of one year and one day, with conditions. Id at 323. This matter is similar to Jones, Jackson, Sumpter and Carreras in that the Respondent was hired to perform a particular legal service and failed to timely complete the service. Also like the clients in Jackson, Sumpter and Carreras, the Babins have suffered substantial harm because of the Respondent's actions. As in Jones, the aggravating factor of substantial experience in the practice of law should be offset by Respondent's lack of a disciplinary record during his legal career. Unlike Ms. Carreras and Mr. Sumpter, the Respondent has participated in these proceedings and has not allowed the case to proceed as a deemed admitted matter. Given the above, the hearing committee's proposed sanction appears to be too lenient. Although the Respondent's conduct in missing the filing deadline appears to be primary based upon negligence, the record supports a finding that he failed to properly communicate with the Babins prior to and after the sheriffs sale. Moreover, even though this case is very 58 Appendix C, Board's Previous Recommendation in 05-DB-085 similar to the Jones matter discussed above, the Board has found that the Babins suffered irreparable harm, the loss of their home, in this matter. The sanction in this matter should therefore be more stringent than that imposed in Jones. Accordingly, the Board will not adopt the committee's proposed sanction and instead recommends that the Respondent be suspended for a period of three months, with all but thirty days deferred. Following the active period of suspension, the Board further recommends that the Respondent be placed on a six month period of supervised probation during which time a probation monitor will monitor his law practice. The Board also recommends that, if not already completed, the Respondent reimburse Mr. and Mrs. Babin for the fee they paid to him to file their bankruptcy proceeding, and that he be assessed with all costs and expenses ofthese proceedings. RECOMMENDATION The Disciplinary Board adopts the hearing committee's findings of fact and findings that Rules of Professional Conduct 1.3 and 1.4 have been violated. Further, the Board recommends that the Respondent be suspended for a period of three months, with all but thirty days deferred. Following the active period of suspension, the Board recommends that the Respondent be placed on a six month period of supervised probation during which time a probation monitor will monitor his law practice. The Board also recommends that, if not already completed, the Respondent reimburse Mr. and Mrs. Babin for the fee they paid to him to file their bankruptcy proceeding, and that he be assessed with all costs and expenses of these proceedings. 59 Appendix C, Board's Previous Recommendation in 05-DB-085 [lJ The applicable version of Rule 1.3 provides that "a lawyer shall act with reasonable diligence and promptness in representing a client.!! [2J The applicable version of Rule 1.4 provides that "a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information;" and (b) "the lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursned, to the extent the client is willing and able to do so.n [3J The Respondent was admitted to the practice oflaw in this State on September 9, 1971. 60
SZYMONIAK NOT THE ORIGINAL SOURCE! DID SHE SCREW-OVER MANY OTHERS? FALSE CLAIMS ACT USED IN THIS NEWLY UNSEALED COMPLAINT--LYNN SZYMONIAK, THE FEDERAL GOVERNMENT AND MANY STATE GOVERNMENTS-AUGUST 2013- NAMES ALL THE BIG TIME BANKS---BUT STILL NO RELIEF FOR HOMEOWNERS FIGHTING FOR THEIR HOMES---NO CHAIN OF TITLE