ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ALI ZITO SHIELDS. NUMBER: 12-DB-038 c/w 13-DB-053 RECOMMENDATION TO THE LOUISIANA SUPREME COURT

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ALI ZITO SHIELDS NUMBER: 12-DB-038 c/w 13-DB-053 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This matter consists of two sets of formal charges filed by the Office of Disciplinary Counsel ( ODC ) against Ali Zito Shields ( Respondent ), Louisiana Bar Roll Number The charges were heard by separate Hearing Committees. The formal charges were consolidated for review by the Board. The first set of charges, which bears docket number 12-DB-038 and consists of one count, alleges violations of Rules of Professional Conduct ( Rule(s) ) 8.4(a) (violating or attempting to violate the Rules); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); Rule 1.15 (failure to provide an accounting); 1.16 (failure to return a client s file); and 8.1(c) (failure to cooperate with ODC in an investigation). 2 The Hearing Committee assigned to this matter found that Respondent violated the Rules as charged with the exception of Rule 8.1(c). As a sanction, the Committee recommended that Respondent be suspended for six months, all deferred, subject to a one-year period of unsupervised probation. The Hearing Committee also recommended that Respondent participate in fee arbitration with her client and attend Ethics School sponsored by the LSBA. The second set of formal charges, which bears docket number 13-DB-053 and consists of one count, alleges a violation of the Rule 1.16 (failure to refund an unearned fee). The Hearing 1 Respondent was certified ineligible to practice law on May 31, 2013, for failure to fulfill her MCLE requirements. She was certified ineligible again on September 9, 2013, for failure to pay her bar dues and disciplinary assessment and for failure to file her annual trust account overdraft disclosure authorization. She remains ineligible. 2 The text of the Rules is contained in the attached Appendix. c/w 13-DB-053 louisiana

2 Committee assigned to this matter concluded that Respondent violated the Rules as charged and recommended a suspension from the practice of law for a period of eighteen months. For the following reasons, the Board adopts the findings and conclusions of the Hearing Committees with the exception of the Committee s conclusion regarding Rule 8.1(c) in 12-DB With regard to the sanction for this consolidated matter, the Board recommends that Respondent be suspended for one year and one day. I. 12-DB-038 PROCEDURAL HISTORY The formal charges in 12-DB-038 were filed on June 11, 2012, and state in pertinent part: During the course of an investigation prompted by the complaint of Ms. Melinda Miranda (Complainant) against Respondent, Ali Zito Shields, information was discovered concerning what appeared to be notarial misconduct. Specifically, in her initial reply of July 30, 2011, Respondent references ing pleadings to Complainant for Complainant to file with the clerk of court in St. John the Baptist Parish. These pleadings included (1) the petition for a 103 divorce and other incidental matters; (2) an affidavit of verification; (3) an order; (4) a motion to proceed in forma pauperis; (5) an in forma pauperis affidavit; (6) a mover's affidavit; (7) a third party affidavit; and (8) a letter forwarding the same to the clerk. In an message dated December 21, 2010, which accompanied these attachments, Respondent instructed Complainant to sign Respondent's name on the attorney lines and on the notary lines prior to filing these items with the clerk. Respondent further confirmed these instructions at her sworn statement, which was taken on November 8, Though she points out that Complainant never actually filed these items with the clerk, Respondent acknowledged that she had instructed Ms. Miranda to sign Respondent's name as an attorney on the pleadings in question. Respondent further acknowledged instructing Ms. Miranda to sign her name in the notary space as well. Respondent indicates that she would not have been present and would not have actually witnessed the execution of any of the documents referenced in these instructions. Respondent's conduct, in attempting to induce Ms. Miranda into falsely affixing Respondent's name in the attorney and notary spaces, constitutes violations of Rules 8.4(a) and (c). Of additional concern is the fact that Respondent admitted that she had not returned Complainant's file. She indicated that no request had been made, despite a copy of correspondence of August 11, 2011 having been forwarded to her. 2

3 Respondent has failed to provide any sort of itemized bill for the services she claims to have rendered in this matter. Giving Respondent the benefit of any doubt as to her receipt of any requests for the return of file or accounting, Respondent was clearly made aware of these requests at the time of her sworn statement. However, as indicated in Miranda's letter of May 4, 2012, some six months later, Respondent has neglected to provide either an accounting or the file to Ms. Miranda. These failures constitute a violation of Rules 1.15 and 1.16 of the Louisiana Rules of Professional Conduct. In a letter of May 8, 2012, the Office of the Disciplinary Counsel placed Respondent on notice of the potential violations arising from her instructing Ms. Miranda to sign her name to a pleading and to sign her name in the notary space prior to filing these items with a court. In accordance with the provisions of Rule 8.1 of the Louisiana Rules of Professional Conduct, Respondent was advised of her requirement to provide a written response within fifteen days. The certified mailing receipt evidences that this correspondence was delivered on May 9, 2012 to Respondent's primary bar registration address. The signature thereupon suggests that Respondent herself received this item. As of the date of the submission of this request, no reply has been received from Respondent by the Office of the Disciplinary Counsel. As such, Respondent has violated Rule 8.1(c) by failing to cooperate with this office in its investigation into this matter. Respondent answered the charges on July 5, 2012, in which she admitted to the attempted notarial misconduct and provided explanations for her other actions. This matter was assigned to Hearing Committee Number 15 3 and a hearing was scheduled. On October 1, 2012, ODC filed its prehearing memorandum in which it argued that a suspension of six to twelve months was appropriate with a portion deferred. Also on October 1, 2012, the parties filed a joint stipulation in which Respondent stipulated to the facts and Rule violations in the formal charges. Respondent filed her prehearing memorandum on October 4, 2012, in which she argued that all of the suspension proposed by ODC be deferred. The hearing of this matter was held on October 30, Deputy Disciplinary Counsel James W. Standley IV appeared on behalf of ODC. Respondent appeared pro se. 3 Committee #15 was composed of Harry J. Philips, Jr. (Chairman), Patricia W. Hicks (Lawyer Member), and Hurley Griffing (Public Member). 3

4 The Committee filed its report on February 6, Despite the stipulations, the Committee conducted a thorough and detailed analysis of the facts of this matter, which can be found at pages 5-10 of the Committee s report. The Committee concluded that Respondent violated the Rules as charged, with the exception of Rule 8.1(c). As mentioned above, the Committee recommended a six month suspension, all deferred, subject to a one-year period of supervised probation. The Committee also recommended that Respondent engage in fee arbitration with her client, Ms. Miranda. On February 21, 2013, ODC filed a notice of no objection to the Committee s report. On May 31, 2013, ODC filed a motion requesting that this matter be stayed pending resolution of an investigation by that office regarding an unrelated matter concerning Respondent. This motion was granted on June 4, 2013, and the matter was stayed. II. 13-DB-053 The formal charges were filed on October 4, 2013, and mailed to Respondent via certified mail addressed to both her primary bar registration address 4 and secondary mailing address. 5 Respondent failed to respond to the charges within the time period prescribed by Louisiana Supreme Court Rule XIX, 11(E)(3). 6 Accordingly, on November 6, 2013, ODC filed a Motion Parent Street, New Roads, Louisiana 70760, (received and signed for by an unknown individual, Norma Russell, on or around October 15, 2013) st Street, Apartment D Addis, Louisiana The green card was neither signed for nor returned. 6 The rule provides, in pertinent part: The respondent shall file a written answer with the Board and serve a copy on disciplinary counsel within twenty (20) days after service of the formal charges, unless the time is extended by the chair of the hearing committee. In the event, Respondent fails to answer within the prescribed time, or the time as extended, the factual allegations contained within the formal charges shall be deemed admitted and proven by clear and convincing evidence. Disciplinary Counsel shall file a motion with the chair of the hearing committee to which the matter is assigned requesting that the factual allegations be deemed proven with proof of service of the formal charges upon the respondent. The order signed by the hearing committee chair shall be served upon respondent as provided by Section 13(b). Within twenty (20) days of the mailing of the order of the hearing committee chair deeming the factual allegations contained in the formal charges proven, the respondent may move the hearing committee chair to recall the order thus issued upon 4

5 to Declare Factual Allegations Deemed Proven. On November 26, 2013, an order was signed by the hearing committee chairman finding the factual allegations to have been deemed admitted and proven by clear and convincing evidence. On December 23, 2013, Office of Disciplinary Counsel filed First Supplemental and Amended Formal Charges. The charges state, in pertinent part: 7 On September 14, 2012, this office received the complaint of Patricia and Tom Sanders (Complainants). Therein, issue is taken with attorney Ali Zito Shields (Respondent), who was retained to represent their son, Shawn Sanders, on burglary charges. Complainants paid $6, in fees to Respondent, plus an additional $ for her to draft a power of attorney in March of After receiving the final payment on or about March 28, 2012, Respondent became increasingly difficult to contact and rarely returned calls. The notice of arraignment was served on Complainants on April 20, Thereafter, they continued to contact Respondent concerning this. On May 3, 2012, Respondent contacted Complainants. It was at this time that they advised her of the May 23, 2012 arraignment date. Despite this, Respondent failed to appear on that date. It should be noted that, despite having been paid for the representation, Respondent did not file any pleadings to enroll in the matter. On the afternoon of May 23, 2012, Complainants contacted Respondent and advised her that they no longer wished to have her services. Complainants further requested a refund of the fees paid. At that time, Respondent indicated that they were not due any refund and refused to return any fees. In this agreement, Respondent indicates that the minimum fee would be $6,000.00, but that this could increase if she believed that the case would require more than plea negotiations and treatment with said overage to be paid from Shawn Sanders's disability benefits. Respondent further confirmed the details of this agreement when she appeared for her sworn statement on May 2, demonstration of good cause why imposition of the order would be improper or would result in a miscarriage of justice. 7 The amended formal charges are nearly identical to the charges filed on October 4, It appears the amended charges were filed to correct a few grammatical and language errors. 5

6 Respondent provided a handwritten agreement in which she acknowledges receipt of $1, from Mr. Sanders on March 2, 2012 in connection with the six burglary counts facing Shawn Sanders in East Baton Rouge Parish. Respondent acknowledges that the minimum fee for the services she was to perform was $6, She admits that this fee was not deposited into a trust account, as it was a flat minimum fee. Though Respondent was asked to provide an accounting in this matter, no such documentation has been received by the Office of the Disciplinary Counsel. Complainants ultimately sought the services of other counsel to resolve this matter. As of the date of this filing, none of the fees have been refunded in this matter. In a letter of September 19, 2013, attorney Brian J. Prendergast, who was retained by the Sanders subsequent to Respondent's termination, confirmed that the record in this matter had no indication that Respondent ever enrolled as counsel. Prendergast's efforts to contact Respondent regarding this matter were unsuccessful. Accordingly, that there is sufficient evidence to prove by clear and convincing evidence that Respondent has violated Rule 1.16 in failing to return the unearned fee. As such, the imposition of discipline is warranted. The amended charges were mailed to Respondent via certified mail addressed to both the primary and secondary bar registration addresses by letters dated December 26, Respondent failed to file a response to the amended charges, and on February 3, 2014, ODC filed another Motion to Declare Factual Allegations Deemed Proven. On February 17, 2014, an order was signed by the chairman Hearing Committee Number 1 9 finding the factual allegations to have been deemed admitted and proven by clear and convincing evidence pursuant to Louisiana Supreme Court Rule XIX, Section 11(E)(3). Respondent did not move to recall the order nor did she make a submission on the issue of sanctions. ODC filed its submission on sanctions on April 17, Respondent did not file anything for the Committee's consideration. 8 The green card was signed for on January 4, 2014 by an individual named Norma Russell at Respondent s primary mailing address, and the green card from the secondary address was neither signed for nor returned. 9 Committee #1 was composed of Anthony Bradley Berner (Chairman), Leigh Olivia Lamonica (Lawyer Member), and Rosella Williams (Public Member). 6

7 The Committee issued its report on May 30, The Committee concluded that Respondent violated Rule 1.16 as charged in the formal charges. When assessing the appropriate sanction, the Committee found that Respondent s conduct was knowing when she failed to return an unearned fee. The Committee found that the only mitigating factor in the record was Respondent s lack of any prior discipline. Based upon these findings and conclusions, the Committee unanimously recommended that Respondent be suspended for from the practice of law for a period of eighteen (18) months and that she be ordered to arbitrate the fee dispute and provide restitution to the Complainants as ordered therein. III. Consolidation The matters above, 12-DB-038 and 13-DB-053, were consolidated by order of the Board on June 2, 2014, and the stay issued in 12-DB-038 was lifted. ODC filed a brief on July 18, 2014, in which it argued that at least an eighteen month suspension was appropriate. Oral argument of the consolidated matter was heard by Board Panel C on September 4, Deputy Disciplinary Counsel James W. Standley IV appeared on behalf of ODC. Respondent did not appear. ANALYSIS OF THE RECORD BEFORE THE BOARD I. Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of Louisiana Supreme Court Rule XIX. Rule XIX, 2(G)(2)(a) states that the Board is to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations. Inasmuch as 10 Board Panel C was composed of Carl A. Butler (Chairman), Anderson O. Dotson III (Lawyer Member), and Linda P. Spain (Public Member). 7

8 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 a de novo review of the hearing committee s application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). A. The Manifest Error Inquiry DB-038 The factual findings of the Committee do not appear to be manifestly erroneous. They are supported by the stipulations of the parties and the evidence in the record DB-053 The factual allegations in the formal charges have been deemed admitted and proven pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). The factual findings of the Committee are supported by the factual allegations asserted in the formal charges and by the evidence submitted in support of the allegations. See In re Donnan, (La. 1/10/03), 838 So.2d 715. B. De Novo Review DB-038 The Committee correctly applied the Rules of Professional Conduct with the exception of Rule 8.1(c). As mentioned above, Respondent stipulated to violating the Rules as charged in the formal charges. The Louisiana Supreme Court ( the Court ) has held that in discipline matters effect must be given to [the stipulations of the parties] unless they are withdrawn. In re Torry, (La. 10/19/10), 48 So.3d 1038, 1041 (rejecting the Board s holding that it was not bound by stipulated Rule violations). Here, Respondent stipulated to violating the Rules as 8

9 charged in the formal charges. Specifically, Respondent stipulated to violating Rules 8.4(a), 8.4(c), 1.15, 1.16, and 8.1(c). Thus, according to the Court s holding in Torry, the Committee and the Board are bound by these stipulations. However, the Committee made the following conclusion regarding Rule 8.1(c): [A]lthough the Respondent by stipulation has agreed that she did not respond to the May 8, 2012 letter from ODC, she did not stipulate that she has violated Rule 8.1(c) as a result of that failure to respond. Contrary to the Committee s conclusion, the stipulations filed by the parties on October 1, 2012, state in pertinent part: In a letter of May 8, 2012, the Office of the Disciplinary Counsel placed Respondent on notice of the potential violations arising from her instructing Ms. Miranda to sign her name to a pleading and to sign her name in the notary space prior to filing these items with a court. In accordance with the provisions of Rule 8.1 of the Louisiana Rules of Professional Conduct, Respondent was advised of her requirement to provide a written response within fifteen days. The certified mailing receipt evidences that this correspondence was delivered on May 9, 2012 to Respondent's primary bar registration address. The signature thereupon suggests that Respondent herself received this item. Respondent did not furnish a reply as required by the Rule. As such, Respondent has violated Rule 8.1(c) by failing to cooperate with the Office of the Disciplinary Counsel in its investigation into this matter. Stipulations (filed 10/1/12), p. 2. The stipulation above indicates that Respondent did stipulate to a violation of Rule 8.1(c). While the Committee raised valid concerns about whether this Rule was actually violated, the Committee and the Board are bound to abide by the stipulation unless it is withdrawn. Respondent did not withdraw this stipulation. Thus, the Board finds that the Committee committed error in concluding that Respondent did not violate Rule 8.1(c) DB-053 The Committee in 13-DB-053 correctly applied Rule 1.16 to the deemed admitted facts. Rule 1.16 requires, in pertinent part, that upon termination a lawyer shall take steps to protect a client s interest, which includes refunding unearned fees. Here, Respondent was hired by 9

10 Patricia and Tom Sanders to represent Shawn Sanders in a criminal matter in March of She was paid a minimum fee of $6,000. Her services were terminated on May 23, While she did perform some work related to bond reductions for Mr. Sanders, she did not enroll as counsel in the criminal matter and failed to appear at the arraignment. When the Sanders demanded a refund upon termination, Respondent refused to provide one and failed to provide an accounting. At least a portion of the fees paid appears to be unearned. Accordingly, the record supports the conclusion that Respondent violated Rule II. The Appropriate Sanction A. Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, 10(C) states that when 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 misconduct; and 4. the existence of any aggravating or mitigating factors. Here, Respondent violated duties owed to her clients, the public, and the legal system. With regard to 12-DB-038, Respondent stipulated to acting intentionally when instructing her client to sign Respondent s name as notary on the pleadings in question and acting knowingly when failing to render an accounting or return her client s file. Respondent s actions caused potential injury to the legal system and the public and caused actual injury to her client. With regard to 13-DB-053, Respondent knowingly, if not intentionally, violated her duty to her clients by failing to refund an unearned fee or even provide an accounting of the earned fees. This caused actual harm to her clients. 10

11 The following aggravating factors are present in this matter: substantial experience in the practice of law, 11 multiple offenses, refusal to acknowledge the wrongful nature of the misconduct, dishonest or selfish motive, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency with regard to 13-DB-053. The following mitigating factors are supported by the record: absence of a prior disciplinary record and remorse with regard to 12-DB-038. B. The ABA Standards and Case Law The ABA Standards for Imposing Lawyer Sanctions suggest that suspension is the baseline sanction for Respondent s misconduct. Standard 6.12 states: Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. Here, in 12-DB-038, while the pleadings in question were never actually filed by the client, Respondent instructed her client, Ms. Miranda, to file pleadings that would contain false representations had the client followed Respondent s instructions. Respondent has stipulated that she acted intentionally when she gave this instruction. Likewise, Standard 4.12 calls for a baseline sanction of suspension: 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. Here, Ms. Miranda (12-DB-038) requested a refund of legal fees from Respondent. Respondent maintains that she earned the entire fee. Nonetheless, given the dispute, Respondent had an obligation to provide an accounting and protect the legal fee until the 11 Respondent was admitted to the practice of law in Louisiana on October 10,

12 dispute was resolved. She has not provided an accounting, protected the fee, or made an attempt to resolve the dispute. Additionally, Respondent failed to refund and/or protect the unearned fees in the Sanders matter (13-DB-053) or otherwise provide an accounting of the fees. Accordingly, suspension appears to be the baseline sanction. The Board and/or the Supreme Court have imposed sanctions ranging from public reprimand to one year and one day suspension for misconduct related to improper notary conduct and/or false representations to a tribunal. In In re Russ, the Board imposed a public reprimand based on Mr. Russ s improper notarization of documents. 10-DB-014, Ruling of the Disciplinary Board (8/9/11). Mr. Russ notarized the signature of a non-lawyer who was engaging in the unauthorized practice of law and notarized signatures on several powers of attorney without witnessing the parties sign in his presence. There were several mitigating factors present: absence of a prior disciplinary record; absence of a dishonest or selfish motive; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; and remorse. There were no aggravating factors present. See also In re Sellers, (La. 3/15/96); 669 So.2d 1204 (The Court imposed a public reprimand for the failure to disclose the existence of a collateral mortgage to a third party and notarizing mortgage certificates verifying that the property was free and clear of liens and encumbrances); In re Guillory, 01-DB-047, Ruling of the Disciplinary Board (11/19/02) (The Board imposed a public reprimand for notarizing an Act of Exchange involving real property that was not signed by all of the owners in the lawyer s presence); In re Deshotel, 97-DB-063, Ruling of the Disciplinary Board (4/8/99) (The Board imposed a public reprimand for notarizing and backdating a marriage contract to predate the signatories' marriage, knowing that a post-nuptial execution of a marriage contract without court authority was null). 12

13 In In re Brown, the Court suspended Mr. Brown for three months, all deferred, for notarizing a will without seeing the testator or witnesses sign the will and then filing the will for probate (La. 7/1/11), 68 So.3d In In re: Landry, the Court suspended Mr. Landry for 6 months, with all but 30 days deferred, for filing false affidavits with a court (La. 7/6/06), 934 So. 2d 694. Mr. Landry had his secretaries sign affidavits of death and heirship, knowing that the secretaries did not have the requisite knowledge of the decedent to do so. The Court considered several mitigating factors in imposing a sanction, which included remorse, lack of an improper motive, and inexperience in the practice of law. There were no aggravating factors present. In In re Warner, the Court suspended Mr. Warner for one year and one day for acting with fraudulent intent when directing the daughter of the decedent, who was a client of the respondent in a personal injury action, to sign her deceased father's name on a release and a settlement check (La. 6/27/03), 851 So. 2d In determining the sanction, the Court gave weight to the fact that the respondent had a prior disciplinary history for similar conduct and the respondent s dishonest/selfish motive. Here, Respondent s conduct appears to be on the lower end of the sanction range discussed above, especially since Ms. Miranda never followed through with Respondent s instructions to sign Respondent s name on the pleadings and file them with the court. However, Respondent also engaged in the additional misconduct of failing to provide an accounting and failing to return the client s file in 12-DB-038, and failing to refund and/or protect an unearned fee in 13-DB-053. This conduct calls for a harsher sanction. In similar cases involving failure to return files, provide accountings, and/or refund unearned fees, the Court has imposed sanctions ranging from fully-deferred suspension to moderate suspensions. 13

14 In In re Gaston, the Court imposed a six month suspension, all deferred, subject to a two year period of probation, for Ms. Gaston s failure to return unearned fees to two clients (La. 7/1/11), 65 So.3d In one matter, she failed to return the fee despite the request of a bankruptcy trustee. The Court recognized several mitigating factors: absence of a prior disciplinary record; personal or emotional problems; and inexperience in the practice of law. The only aggravating factor present was Ms. Gaston s indifference to making restitution. In In re Schmidt, Mr. Schmidt was suspended from the practice of law for one year and one day, with all but sixty days deferred subject to a two-year period of probation with conditions. (La. 12/10/13), 130 So.3d 908. Mr. Schmidt failed to complete his clients legal matters, to communicate with his clients, to promptly return unearned fees and client files, and to cooperate with the Office of Disciplinary Counsel in its investigation. Id. The Court reasoned that Mr. Schmidt s conduct seem[ed] to arise from poor law office management skills rather than any improper motives. Id. at 913. The following aggravating factors were present: a prior disciplinary record, a pattern of misconduct, multiple offenses, vulnerability of the victims, and substantial experience in the practice of law. The following mitigating factors were present: absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. While Respondent s misconduct conduct is analogous to the misconduct in Gaston and Schmidt, unlike those matters the aggravating factors in this matter clearly outweigh the mitigating factors. Respondent has failed to even appear in the 13-DB-053 matter or make any efforts to refund the unearned fee or, at least, address that issue through fee arbitration. When considered with the intentional attempted notarial misconduct in 12-DB-038, a one year and one day suspension with no period deferred appears to be appropriate. Thus, Respondent will have 14

15 to file a petition for reinstatement pursuant to Rule XIX, 24, to return to the practice of law, which will require her to address the unearned fees with her former clients and otherwise demonstrate her fitness to return to practice. CONCLUSION The Board adopts the factual findings and legal conclusions of the Committee with the exception of the Committee s conclusion regarding Rule 8.1(c). Rather, the Board concludes that Respondent violated Rule 8.1(c) in 12-DB-038 by virtue of her stipulation. With regard to the sanction, the Board recommends that Respondent be suspended for one year and one day. The Board also recommends that Respondent engage in fee arbitration with Ms. Miranda and the Sanders through the Louisiana State Bar Association Fee Arbitration program and abide by any decision that may result. Finally, the Board recommends that Respondent be assessed with the costs and expenses of this matter. 15

16 RECOMMENDATION The Board recommends that Respondent, Ali Zito Shields, be suspended from the practice of law for one year and one day. The Board also recommends that Respondent engage in fee arbitration with Ms. Miranda and the Sanders through the Louisiana State Bar Association Fee Arbitration program and abide by any decision that may result. Finally, the Board recommends that Respondent be assessed with the costs and expenses of this matter. LOUISIANA ATTORNEY DISCIPLINARY BOARD Carl A. Butler John T. Cox, Jr. George L. Crain, Jr. Carrie L. Jones Tara L. Mason R. Lewis Smit"--'"' Linda P. Sp R. Steven BY: And 0. Dotson, III FOR THE ADJUDICATIVE COMMITTEE 16

17 RULE 8.4. MISCONDUCT It is professional misconduct for a lawyer to: APPENDIX (a) (b) (c) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; Engage in conduct involving dishonesty, fraud, deceit or misrepresentation RULE 8.1. BAR ADMISSION AND DISCIPLINARY MATTERS An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) (b) (c) Fail to cooperate with the Office of Disciplinary Counsel in its investigation of any matter before it except for an openly expressed claim of a constitutional privilege. RULE SAFEKEEPING PROPERTY (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 property. Except as provided in (g) and the IOLTA Rules below, funds shall be kept in one or more separate interest-bearing client trust accounts maintained in a bank or savings and loan association: 1) authorized by federal or state law to do business in Louisiana, the deposits of which are insured by an agency of the federal government; 2) in the state where the lawyer s primary office is situated, if not within Louisiana; or 3) elsewhere with the consent of the client or third person. No earnings on a client trust account may be made available to or utilized by a lawyer or law firm. 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. (b) A lawyer may deposit the lawyer s own funds in a client trust account for the sole purpose of paying bank service charges on that account or obtaining a waiver of those charges, but only in an amount necessary for that purpose. (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. The lawyer shall deposit legal fees and expenses into the client trust account consistent with Rule 1.5(f). (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 17

18 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. (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. (f) Every check, draft, electronic transfer, or other withdrawal instrument or authorization from a client trust account shall be personally signed by a lawyer or, in the case of electronic, telephone, or wire transfer, from a client trust account, directed by a lawyer or, in the case of a law firm, one or more lawyers authorized by the law firm. A lawyer shall not use any debit card or automated teller machine card to withdraw funds from a client trust account. On client trust accounts, cash withdrawals and checks made payable to Cash are prohibited. (g) A lawyer shall create and maintain an IOLTA Account, which is a pooled interestbearing client trust account for funds of clients or third persons which are nominal in amount or to be held for such a short period of time that the funds would not be expected to earn income for the client or third person in excess of the costs incurred to secure such income. RULE DECLINING OR TERMINATING REPRESENTATION (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. Upon written request by the client, the lawyer shall promptly release to the client or the client's new lawyer the entire file relating to the matter. The lawyer may retain a copy of the file but shall not condition release over issues relating to the expense of copying the file or for any other reason. The responsibility for the cost of copying shall be determined in an appropriate proceeding. 18

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