LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: CHARLES L. DIRKS, III NUMBER: 15-DB-056 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION

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1 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: CHARLES L. DIRKS, III NUMBER: 15-DB-056 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This is a discipline matter based upon the filing of formal charges by the Office of Disciplinary Counsel ( ODC ) against Charles L. Dirks, III ( Respondent ), Louisiana Bar Roll Number The charges, which consist of one count, allege violations of Rules of Professional Conduct 1.4 (failure to properly communicate with a client) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). 2 Respondent answered the charges and admitted to the misconduct. The Hearing Committee assigned to this matter concluded that the Rules were violated as charged and recommended that Respondent be suspended for sixty days. For the following reasons, the Board adopts the findings, conclusions, and recommendation of the Committee. Accordingly, the Board recommends that Respondent be suspended from the practice of law for sixty days. PROCEDURAL HISTORY ODC filed the formal charges on October 14, The charges read, in pertinent part: BACKGROUND You were retained by Sharon Landrum in October of 2009 to represent her in connection with a claim for wrongful termination. You initiated a complaint on Ms. Landrum's behalf with the EEOC and obtained a Right to Sue letter from the EEOC. 1 Respondent is currently eligible to practice law. 2 The text of the Rules is contained in the attached Appendix.

2 Upon your receipt of the Right to Sue letter, you filed a complaint on behalf of Ms. Landrum in the United States District Court, Western District of Louisiana under docket# 1:11-cv During the discovery phase of the District Court proceedings, in particular the depositions of Ms. Landrum and her former manager, you learned that Ms. Landrum had not provided you with all of the facts surrounding her case. After Ms. Landrum s deposition testimony, you advised her that it was your professional opinion that it had not gone well. You further told her that it was your opinion the case would likely be dismissed. Ms. Landrum s employer filed a motion for summary judgment with the District Court. You did not file a memorandum with the court opposing the motion for summary judgment, as you did not believe you had any evidence to contradict Ms. Landrum's admissions as made during her deposition. Judge Dee Drell ultimately granted the defendant s motion for summary judgment, dismissing Ms. Landrum s case, on August 23, ALLEGATIONS OF MISCONDUCT For approximately one year after the court dismissed her case on the motion for summary judgment, Ms. Landrum contacted you on numerous occasions to check on the status of her case. Based upon text messages provided to ODC by Ms. Landrum, you routinely advised her that you had not heard anything from the court about the status of her case and indicated that you would check on it. Ms. Landrum claims that in approximately August of 2014 she looked into the matter herself and learned that her case had been dismissed the previous August. In your October 20, 2014 response to Ms. Landrum s complaint to ODC, you specifically advised I did not see the ruling issued in this matter. Ms. Landrum asked me about the Motion for Summary Judgment many times. I checked my electronic notices each time and other times to see if I received a ruling. I have checked my notices several more times and do not see where I received an electronic notice, however, it is my responsibility regardless. As part of ODC s investigation, your sworn statement was taken. During this statement, you acknowledged you had received the court s judgment within a week, give or take of it having been rendered by the court. In explaining your reasons for not telling Ms. Landrum her case had been dismissed, you advised you were upset with Ms. Landrum because of her having misled you about the true facts of the case, and you just didn t want to deal with it. This evidence obtained by ODC and the Court's jurisprudence suggests that your failure to properly communicate with Ms. Landrum concerning the status of her case and your providing false information to both Ms. Landrum and ODC is a violation of Rules 1.4 (failure to properly communicate with a client) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) of the Rules of Professional Conduct. 2

3 Respondent filed a brief answer to the charges on January 14, 2016, in which he admitted to the allegations. As I advised Mr. Tweed, I admit to charges one and two. I provided him with a full explanation and can do so for you. I am not proud of my actions. It is not who I am or what I believe in as a spouse, father or let alone attorney. I let my anger and emotions over the situation get the better of me. I teach my children every day to be honest and in control of their emotions. I have given them a horrible example of what occurs when you fail at this simple rule of life. I apologize for my actions and am ready to move forward with this process in hope of having an opportunity to show contrition for same. ODC filed its pre-hearing memorandum on March 31, 2016, in which it argued that a sixty-day suspension was appropriate. Respondent did not file a pre-hearing memorandum. This matter was heard by Hearing Committee Number 26 on April 18, Deputy Disciplinary Counsel Gregory L. Tweed appeared on behalf of ODC. Respondent appeared pro se. The Committee received into evidence ODC Exhibits 1-6 without objection. Respondent was the only witness to testify. The Committee filed its report on June 20, The Committee concluded that Respondent violated the Rules as charged. It found that Respondent s actions were knowing and created the potential for serious harm to his client. In aggravation, the Committee noted Respondent s substantial experience in the practice of law. However, in mitigation, the Committee recognized Respondent s remorse and his lack of a prior disciplinary record. As a sanction, the Committee recommended that Respondent be suspended from the practice of law for sixty days and pay the costs of the proceeding. In its brief filed on August 22, 2016, ODC concurred with the Committee s findings, conclusions, and sanction recommendation. Respondent did not file a brief. 3 The Committee was composed of Charles B. Hansberry, III (Chairman), Alexis M. Breedlove (Lawyer Member), and Clarissa A. Preston (Public Member). 3

4 Oral argument of this matter was heard on September 29, 2016, before Board Panel A. 4 Deputy Disciplinary Counsel Gregory L. Tweed appeared on behalf of ODC. Respondent did not appear in person or through counsel. On September 28, 2016, the Board received correspondence from Respondent in which he waived his appearance at oral argument. 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 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 The factual findings of the Committee do not appear to be manifestly erroneous and are supported by the record. B. De Novo Review The Committee correctly concluded that Respondent violated the Rules as charged. Respondent violated Rule 1.4 by failing to inform his client of the true status of her matter. He 4 Board Panel A was composed of Carrie LeBlanc Jones (Chairwoman), Linda G. Bizzarro (Lawyer Member), and R. Lewis Smith, Jr. (Public Member). 4

5 violated Rule 8.4(c) by misleading his client as to the status of her case and by initially denying knowledge of the status of his client s matter when he responded to her complaint. 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 knowingly violated a duty to his client. The Committee correctly concluded that his conduct did not cause actual harm as it appears very unlikely that his client had a viable cause of action. Nonetheless, his misconduct deprived his client of the ability to appeal the court s ruling, which created the potential for harm to his client. The record supports the aggravating factor recognized by the Committee: substantial experience in the practice of law. 5 The Board also recognizes two other aggravating factors: dishonest or selfish motive and submission of false statements during the disciplinary process. Respondent s misconduct clearly supports the findings that these additional aggravating factors are present. The record also supports the mitigating factors recognized by the Committee: absence of a prior disciplinary record and remorse. With regard to the latter mitigating factor, at the hearing of this matter, Respondent candidly admitted his misconduct and did not attempt to offer excuses for it. Thus, his remorse appears to be sincere. 5 Respondent was admitted to the practice of law in Louisiana on October 9,

6 B. The ABA Standards and Case Law The ABA Standards for Imposing Lawyers Sanctions suggests suspension is the baseline sanction for Respondent s misconduct. Standard 4.42 states, in pertinent part: Suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client Here, Respondent knowingly failed to inform his client of an important ruling in her matter. His failure led to his client losing her right to appeal the ruling, creating the potential for harm. With regard to Respondent s false statements during ODC s investigation, the Court has imposed short periods of suspension of similar misconduct. In In re Bordelon, the Court suspended Mr. Bordelon for sixty days for knowingly making false and misleading statements to ODC during its investigation of a complaint (La. 1/7/05); 894 So.2d 315. In aggravation, the Court recognized Mr. Bordelon s substantial experience in the practice of law. In mitigation, the Court noted the absence of a prior disciplinary record. With regard to misleading his client regarding the status of her matter, the Court has imposed sanctions ranging from fully-deferred suspensions to six month actual suspensions for allowing claims to prescribe or become abandoned then failing to inform and/or mislead the client about the issue. In In re Heisler, the Court suspended Mr. Heisler for one year, all deferred, for allowing a personal injury matter to prescribe, failing to inform his client about the prescription, and staging a settlement whereby he disbursed personal funds to his client (La. 11/3/06); 941 So. 2d 20. The Court found that Mr. Heisler acting knowingly, but did not cause any harm. The only aggravating factor present was Mr. Heisler s substantial experience in the practice of law. The Court recognized several mitigating factors: absence of a prior disciplinary 6

7 record, timely good faith effort to make restitution or to rectify consequences of misconduct, full and free disclosure to disciplinary board or cooperative attitude toward proceedings, and remorse. In In re Thompson, the Court suspended Mr. Thompson for one year, all deferred, for allowing a worker s compensation matter to prescribe, failing to inform the client of the prescription, and staging a disbursement whereby Mr. Thompson disbursed his personal funds to the client (La. 5/8/98); 712 So. 2d 72. Mr. Thompson did not inform his client the claim had prescribed until after the complaint was filed. The Court recognized the following aggravating factors: dishonest or selfish motive, refusal to acknowledge wrongful nature of conduct, and vulnerability of victim. The Court recognized the following mitigating factors: absence of a prior disciplinary record, full and free disclosure to disciplinary board or cooperative attitude toward proceedings, and inexperience in the practice of law. In In re Bruscato, the Court suspended Mr. Bruscato for sixty days for failing to file a client s personal injury lawsuit before the prescriptive deadline (La. 6/4/99); 743 So.2d 645. Without notifying the client about the prescription, Mr. Bruscato filed a motion to dismiss the suit without prejudice. Mr. Bruscato then urged the client to seek Social Security benefits instead of the personal injury matter. The following aggravating factors were present: vulnerability of the victim, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. The following mitigating factors were present: absence of prior disciplinary record, absence of a dishonest or selfish motive, cooperative attitude toward the proceeding, remorse, and character and reputation. In In re August, the Court suspended Ms. August for two years, with all but sixty days deferred, for allowing a wrongful death action to prescribe, misleading the client about the prescription, and failing to withdraw from the matter after being sued for malpractice by the client. 7

8 (10/15/10); 45 So.3d The Court found that Ms. August acted knowingly and caused actual harm. The Court recognized the following aggravating factors: prior disciplinary offenses, a dishonest or selfish motive, and substantial experience in the practice of law. The mitigating factors of full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings and remoteness of prior offenses were also present. Recently, in In re Cade, the Court suspended Mr. Cade for one year and one day, with six months deferred, for allowing a personal injury matter to be dismissed as abandoned and failing to inform the client about the dismissal (La. 6/19/15); 166 So.3d 243. The Court found that Mr. Cade acted knowingly and caused significant harm. The following aggravating factors were present: prior disciplinary offenses and substantial experience in the practice of law. The following mitigating factors were present: full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. See also In re Bullock, (La. 3/24/16); 187 So.3d 986 (one year and one day suspension, with six months deferred, for allowing a personal injury matter to prescribe then misleading the client about the matter s status). Here, Respondent s false statements during the disciplinary investigation is similar to the misconduct in Bordelon. However, Respondent s conduct can be differentiated from the other cases discussed above because his conduct did not cause his client to lose a right of action. Rather, his client had the merits of her matter considered, at least preliminarily, by a court. Respondent s misconduct led to her losing the right to appeal. While the loss of the right to appeal created the potential for harm, it is not as significant as losing a right of action to prescription or abandonment. Nonetheless, Respondent engaged in dishonest conduct by misleading his client and misleading ODC, at least initially. Thus, a short period of suspension, such as that imposed in Bordelon and Bruscato is appropriate. 8

9 CONCLl SIOX Th<: l3oard adorts the factual findings and legal conclusion~ of the ll)jllm ittcc. LJI.;.e\\ i!>e. the B<,nrd ack)pts the ~anction recommended by the Commitlec:. ""hit.h is a sixt;.-da)!>uspcnsion from the rracric~ l)f la\v. The Board also recommends thar Respondent hl' asse~:-ed \\ ith the costs and t:':'-.p~nses nfthi s matlcr. RECOMMl~ NDATION The noard recommends that the Respondent. Charles L. Dirks. Ill. he suspended frorn the pructice of Ia" for sixty c..lnys. The Board a]s(l rc~11 111mcnd s that the Rt spondcnt he as;;essed '-''ith the co-;t;.. and ('xpenscs ofrhis matter. LOUSIA~A ATTORN l~ Y DISCIPLINARY BOARD Linda C. Bizzarro Laur-a B. Hennen Canie L. Jon<>s nominick Scnndurro,.lr. EHtns C. Spiceland,.Jr. Melissa L. Theriot Walter D. \Vhitc Ch<trlcs H. ~~~rson, JL/,. '\ \ I BY: l)

10 APPENDIX 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 8.4. MISCONDUCT It is professional misconduct for a lawyer to: (a) (b) (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 10