LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: HILLIARD CHARLES FAZANDE III DOCKET NO. 18-DB-055 REPORT OF HEARING COMMITTEE # 37 INTRODUCTION

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1 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: HILLIARD CHARLES FAZANDE III DOCKET NO. 18-DB-055 REPORT OF HEARING COMMITTEE # 37 INTRODUCTION This attorney disciplinary matter arises out of formal charges consisting of six counts filed by the Office of Disciplinary Counsel ( ODC ) against Hilliard Charles Fazande III ( Respondent ), Louisiana Bar Roll Number ODC alleges that Respondent violated the following Rules of Professional Conduct: 1.1, 1.3, 1.4, 1.5, 5.5, 8.1(c), and 8.4(a) (b) and (c). 2 PROCEDURAL HISTORY The formal charges were filed on August 9, By letters dated August 14, 2018, the formal charges were mailed via certified mail to Respondent s primary registration address and to his attorney of record, Ernest L. Jones. 3 Both mailings were received on or before August 17, On September 6, 2019, Mr. Jones filed a notice of enrollment on behalf of Respondent. Respondent failed to file an answer to the charges. Accordingly, on October 11, 2018, ODC filed a motion to deem the factual allegations admitted pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). 4 By order signed October 30, 2018, the factual allegations contained in 1 Respondent was admitted to the practice of law in Louisiana on April 20, Respondent is currently suspended from the practice of law on an interim basis. In re Fazande, (La. 5/11/2018). 2 See the attached Appendix for the text of these Rules. 3 Primary address: 4902 Canal St., Ste. 201, New Orleans, LA 70119; Ernest L. Jones: 4211 S. Claiborne Ave., New Orleans, LA This rule states: 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 1

2 the formal charges were deemed admitted. On December 28, 2018, ODC filed its submission on sanction. For the following reasons, the Committee provides a summary of its conclusions and recommendations pertaining to the 6 Counts filed by the Office of Disciplinary Counsel: Respondent failed to file answers in response to the 6 Counts, and, accordingly, the factual allegations by the ODC in each of the Counts is deemed admitted. In addition, Respondent failed to attend a Sworn Statement in Count I despite being subpoenaed. The record proves that Respondent failed to provide any defenses to the charges contained in the 6 Counts. The ODC submitted 35 documents in support of the charges against Respondent; Respondent provided no exhibits. The evidence proves that Respondent violated the following Rule of Professional Conduct: Count I Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (requirement that client be promptly be informed and reasonably consulted about the status of the matter), 8.1(c) (requirement that attorney cooperate with the Office of Disciplinary Counsel in its investigation), and 8.4(a) (requirement that attorney not violate the Rules of Professional Conduct). Count II Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (requirement that client be promptly be informed and reasonably 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 13C. 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 demonstration of good cause why imposition of the order would be improper or would result in a miscarriage of justice. 2

3 consulted about the status of the matter), 1.5 (requirement that attorneys return unearned fee), 8.1(c) (requirement that attorney cooperate with the Office of Disciplinary Counsel in its investigation), and 8.4(a) (requirement that attorney not violate the Rules of Professional Conduct). Count III Rules 1.1(a) (requirement that lawyer provide competent representation to a client), 5.5 (prohibiting attorney from practicing law while suspended), 8.1(c) (requirement that attorney cooperate with the Office of Disciplinary Counsel in its investigation), and 8.4(a) (requirement that attorney not violate the Rules of Professional Conduct). Count IV Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (requirement that client be promptly be informed and reasonably consulted about the status of the matter). Count V Rules 8.4(a), 8.4(b), 8.4(c) (prohibits the committing of a criminal act, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, violating the Rules of Professional Conduct and failing to cooperate with the Office of Disciplinary Counsel). Count VI Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (requirement that client be promptly be informed and reasonably consulted about the status of the matter), 1.5 (requirement that attorneys return unearned fee), 8.1(c) (requirement that attorney cooperate with the Office of Disciplinary Counsel in its investigation), and 8.4(a) (requirement that attorney not violate the Rules of Professional Conduct). For the following reasons, the Committee unanimously recommends the respondent be disbarred. 3

4 FORMAL CHARGES The formal charges read, in pertinent part: COUNT I (ODC File No ) Complainant, Shamira Menendez, hired the respondent in March of 2016, to represent her in a criminal matter. The complainant s father, Felton Bercy paid the respondent in full for the representation. The complainant alleges ineffective assistance of counsel and states that Respondent has refused to return their telephone phone calls. The complainant also states that Respondent has failed to provide copies of documents requested in connection with the underlying criminal matter. A copy of the complaint filed by Ms. Menendez was mailed to the respondent on January 18, The postal receipt received indicates delivery of complaint was made at the respondent s bar registration address on January 20, Respondent failed to respond and a second notice was mailed on February 15, The postal receipt indicates delivery of the second notice was made on February 17, Respondent failed to respond to the complaint and a subpoena was issued for Respondent to appear for his sworn statement on September 13, 2017; however, Respondent failed to appear and a proces verbal was taken. Respondent has violated Rules 1.3, 1.4, 8.1(c). and 8.4(a) of the Rules of Professional Conduct. COUNT II (ODC File No ) Complainant, Frank J. Douse, hired the respondent in November of 2016, to file pleadings for a divorce proceeding. Complainant paid the respondent $ Respondent failed to complete any of the work. Respondent issued the complainant a refund in the amount of $ only. A copy of the complaint was mailed to the respondent on August 17, The postal receipt received indicates delivery of complaint was made at the respondent s bar registration address on August 19, In addition to mailing the complaint to Respondent s bar 4

5 registration address, ODC also had Respondent personally served with a copy of the complaint by one of our investigators on September 13, Despite being served with a copy of the complaint, Respondent has failed to provide a response to the complaint. Respondent has violated Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(a) of the Rules of Professional Conduct. COUNT III (ODC File No ) On October 4, 2017, the respondent appeared as counsel of record in several cases in Orleans Parish Criminal District Court, during a period of ineligibility, for failure to attend annual mandatory continuing legal education requirement, pay annual bar and disciplinary dues, and submit annual Trust Account registration and disclosure statement. Notice of this complaint was mailed to Respondent on October 16, A postal receipt was returned to ODC indicating delivery of this complaint was made at Respondent s bar registration address on October 18, 2017; however, Respondent has failed to respond to this matter. Respondent has violated Rule 1.1, 5.5, 8.1(c). and 8.4(a) of the Rules of Professional Conduct. COUNT IV (ODC File No ) A complaint was filed against the respondent by Complainant s, Joseph and Cherryn Burkette. The complainants retained the respondent in October of 2016, to assist in the Interdiction of Shirley Burkette, Mr. Joseph Burkette s mother. The complainants paid the respondent $ for his services; however, Respondent failed to complete the work. Respondent also failed to communicate with Complainant s or respond to their requests for an account and refund. Initially this matter was referred to the LSBA s Relational Referral Program. During a conference call on September 21, 2017, Respondent agreed to return the entire fee to the 5

6 complainant s; however, Respondent failed to return the fee and an investigative filed was opened. Notice of this complaint was mailed to Respondent on January 24, A postal receipt was returned to ODC indicating delivery of this complaint was made at Respondent s bar registration address on January 26, Respondent failed to provide a response and a second notice was mailed on February 16, 2018; however, Respondent has failed to respond to this matter. Respondent has violated Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(a) of the Rules of Professional Conduct. COUNT V (ODC File No ) On or around March 22, 2018, the Office of Disciplinary Counsel received information that on November 22, 2017, the respondent was arraigned before the United States District Court and entered a guilty plea to the charges contained in the Bills of Information filed against him for Bank Theft in violation of Title 18, United States Code, Section 2113(b) on March 22, Respondent was scheduled to be sentenced on June 28, Count One of the Bill of Information, filed against the respondent, charges that on October 26, 2015, Respondent opened bank account no. xxx3497 at the Whitney Bank branch located at 3001 Holiday Drive, New Orleans, Louisiana. On October 30, 2015, 5 of 7 Respondent endorsed and deposited a $387,000 cashier s check made payable to Attorney Hilliard C. Fazande, III into account no. XXX3497 at the Whitney Bank branch located at 3001 Holiday Drive, New Orleans, Louisiana. On October 31, 2015, Respondent visited the Whitney Bank branch located at 8300 Louisiana Hwy. 23 in Belle Chasse, Louisiana and presented a bank teller with a temporary check drawn on the account in the amount of $5,000, knowing that he did not have sufficient funds to cover the transaction due to a bank hold on the $387,000 check. 6

7 Respondent nevertheless proceeded to cash the temporary check drawn from account no. xxx3497. On November 4, 2015, a Whitney Bank employee contacted Respondent and advised him that the $387,000 check was counterfeit and informed him that he must return the $5,000 he withdrew on October 31, Respondent indicated he would do so, but thereafter failed and refused to return the $5,000. Notice of this complaint was mailed to Respondent on March 29, Respondent failed to accept service of the certified mailing and the item was returned to ODC. Respondent has not submitted any response to the allegations concerning this matter. Respondent has violated Rules 8.4(a) (b) (c), and 8.1(c) of the Rules of Professional Conduct. COUNT VI (ODC File No ) Complainant, JoAnn Legendre, hired the respondent to represent her in a criminal matter in March of The complainant paid 6 of 7 the respondent $ to appear in court on March 23, 2018, on her behalf. Respondent failed to appear or refund the clearly unearned fee. Notice of this complaint was mailed to Respondent on April 16, The postal receipt indicates delivery was made at Respondent s bar registration address on April 19, Respondent has failed to provide a response in this matter. Respondent has violated Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(a) of the Rules of Professional Conduct. EVIDENCE The Committee reviewed the exhibits submitted by ODC, which are Exhibits ODC Respondent did not submit evidence or argument for the Committee s consideration, nor did he request to be heard in mitigation pursuant to Rule XIX, 11(E)(4). 7

8 FINDINGS OF FACT AND RULES VIOLATED The Committee finds that the facts and violation of the rules asserted by the ODC in Counts I through VI have been proved. SANCTION Louisiana Supreme Court Rule XIX, 10(C), states that when imposing a sanction after a finding of lawyer misconduct, a committee 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 the 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 the public, the legal system and the profession. Respondent acted intentionally in each of the matters which are the basis for the six counts. Respondent s misconduct caused actual harm to Complainants Shamira Menendez, Frank J. Douse, Joseph and Cherryn Burkette and JoAnn Legendre. The facts which are the basis of Count V are that Respondent opened a bank account at the Whitney Bank in October 2015 and deposited a counterfeit check in the sum of $387,000, and thereafter withdrew $5,000 from the account. He was notified that he must return the $5,000 that he withdrew, but never returned the money. He was subsequently arrested and in September 2018 pleaded guilty for bank theft and has been sentenced in the United States District Court for the Eastern District of Louisiana. The ABA Standards for Imposing Lawyer Sanctions suggest that disbarment is the baseline sanction for Respondent s misconduct. Pursuant to Standards 9.22 and 9.32 of the ABA Standards for Imposing Lawyer Sanctions, the following aggravating factors are present in this matter: criminal conduct, dishonest motive, pattern of misconduct, multiple offenses, refusal to 8

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10 APPENDIX 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. (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 1.3. Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Rule 1.4. Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (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 pursued. (c) A lawyer who provides any form of financial assistance to a client during the course of a representation shall, prior to providing such financial assistance, inform the client in writing of the terms and conditions under which such financial assistance is made, including but not limited to, repayment obligations, the imposition and rate of interest or other charges, and the scope and limitations imposed upon lawyers providing financial assistance as set forth in Rule 1.8(e). Rule 1.5. Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional 10

11 relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client. A copy or duplicate original of the executed agreement shall be given to the client at the time of execution of the agreement. The contingency fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; the litigation and other expenses that are to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of fee between lawyers who are not in the same firm may be made only if: (1) the client agrees in writing to the representation by all of the lawyers involved, and is advised in writing as to the share of the fee that each lawyer will receive; (2) the total fee is reasonable; and (3) each lawyer renders meaningful legal services for the client in the matter. (f) Payment of fees in advance of services shall be subject to the following rules: (1) When the client pays the lawyer a fee to retain the lawyer s general availability to the client and the fee is not related to a particular representation, the funds become the property of the lawyer when paid and may be placed in the lawyer s operating account. (2) When the client pays the lawyer all or part of a fixed fee or of a minimum fee for particular representation with services to be rendered in the future, the funds become the property of the lawyer when paid, subject to the provisions of Rule 1.5(f)(5). Such funds need not be placed in the lawyer s trust account, but may be placed in the lawyer s operating account. (3) When the client pays the lawyer an advance deposit against fees which are to accrue in the future on an hourly or other agreed basis, the funds remain the property of the client and must be placed in the lawyer s trust account. The lawyer may transfer these funds as fees are earned from the trust account to the operating account, without further authorization from the client for each transfer, but must render a periodic accounting for these funds as is reasonable under the circumstances. (4) When the client pays the lawyer an advance deposit to be used for costs and expenses, the funds remain the property of the client and must be placed in the lawyer s trust account. The lawyer may expend these funds as costs and expenses accrue, without further authorization from the client for each expenditure, but must render a periodic accounting for these funds as is reasonable under the circumstances. (5) When the client pays the lawyer a fixed fee, a minimum fee or a fee drawn from an advanced deposit, and a fee dispute arises between the lawyer and the client, either during the course of the representation or 11

12 at the termination of the representation, the lawyer shall immediately refund to the client the unearned portion of such fee, if any. If the lawyer and the client disagree on the unearned portion of such fee, the lawyer shall immediately refund to the client the amount, if any, that they agree has not been earned, and the lawyer shall deposit into a trust account an amount representing the portion reasonably in dispute. The lawyer shall hold such disputed funds in trust until the dispute is resolved, but the lawyer shall not do so to coerce the client into accepting the lawyer s contentions. As to any fee dispute, the lawyer should suggest a means for prompt resolution such as mediation or arbitration, including arbitration with the Louisiana State Bar Association Fee Dispute Program. Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law (a) A lawyer shall not practice law in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. 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) Knowingly make a false statement of material fact; (b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6; or (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 8.4. Misconduct It is professional misconduct for a lawyer to: (a) 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; (b) Commit a criminal act especially one that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) Engage in conduct that is prejudicial to the administration of justice; (e) State or imply an ability to influence improperly a judge, judicial officer, governmental agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; (f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law; or (g) Threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter. 12