ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: SCOTT ROBERT HYMEL. NUMBER: 13-DB-030 c/w 14-DB-007

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: SCOTT ROBERT HYMEL NUMBER: 13-DB-030 c/w 14-DB-007 RECOMMENDATION TO THE LOUISIANA SUPREME COURT 13-DB-030 c/w 14-DB-007 6/1/2015 INTRODUCTION This attorney disciplinary matter arises out of two sets of formal charges filed by the Office of Disciplinary Counsel ( ODC ) against Scott Robert Hymel ( Respondent ), Louisiana bar roll number The first set of charges, filed June 24, 2013 as matter 13-DB-030, consists of one count alleging violations of the following Rules of Professional Conduct: 1.3 (failing to act with reasonable diligence and promptness), 1.4 (failing to properly communicate with a client), 1.5(f)(5) (failing to refund an unearned fee), 8.1(c) (failing to cooperate with ODC s investigation), 8.4(a) (violating the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty and misrepresentation). The second set of formal charges, filed on April 1, 2014 as matter 14-DB-007, consists of one count alleging violations of the following Rules of Professional Conduct: Rule 1.16(d) (failing to protect his client s interests upon termination of representation), Rule 8.1(c) (failing to cooperate with ODC s investigation), Rule 8.4(a) (violating the Rules of Professional Conduct), and Rule 8.4(c) (engaging in conduct involving dishonesty and misrepresentation). 1 The two matters were assigned to separate hearing committees but were ultimately consolidated by the Board for purposes of rendering one recommendation to the Louisiana Supreme Court. 1 See the attached Appendix for the text of the Rules. 1

2 For the reasons set forth below, the Board adopts the factual findings and legal conclusions of Hearing Committee No. 15 ( Committee No. 15 ) 2 with regard to matter 14-DB The Board also adopts the factual findings and legal conclusions of Hearing Committee No. 57 ( Committee No. 57 ) 3 with regard to matter 13-DB-030, with one exception as addressed below. After considering the records of both matters, the Board recommends that Respondent be suspended from the practice of law for eighteen months, and that he be required to pay full and complete restitution to his client, Jerome Jabes. PROCEDURAL HISTORY I. 13-DB-030 The Office of Disciplinary Counsel ( ODC ) filed formal charges on June 24, The formal charges were served at Respondent s primary bar registration address on July 2, Respondent filed an answer on July 12, A scheduling conference took place in this matter on August 7, 2013, at 10:00 a.m. ODC and the Committee Chair participated, but Respondent did not. On September 12, 2013, pursuant to Supreme Court Rule XIX, 15(A) 4, ODC provided Respondent with the names and contact information for its prospective witnesses, and a list of exhibits expected to be introduced at the hearing in this matter. ODC requested a list of witnesses and exhibits from Respondent 2 Hearing Committee No. 15 is composed of Leu Anne Greco (Chair), Michael Ray Adams (Lawyer Member) and Hurley H. Griffing (Public Member). 3 Hearing Committee No. 57 is composed of Arlene D. Knighten (Chair), Alexis Schulman Luker (Lawyer Member) and Cindy M. Sattler (Public Member). 4 The rule states: Within 20 days following the filing of an answer, disciplinary counsel and respondent shall exchange the names and addresses of all persons having relevant facts. Within 60 days following the filing of an answer, except that the time period may be enlarged by order of the hearing committee chair, disciplinary counsel and the respondent may take depositions in accordance with the Louisiana Code of Civil Procedure. Disciplinary Counsel and respondent shall comply with reasonable requests for (1) non-privileged information and evidence relevant to the charges or the respondent, and (2) other material upon good cause shown to the chair of the hearing committee within 20 days of the request unless otherwise ordered by the hearing committee chair. 2

3 but received no response. In anticipation of the hearing, ODC filed a pre-hearing memorandum on September 23, Respondent did not file a brief prior to the hearing. The hearing was held on October 16, 2013 before Hearing Committee No. 57. Deputy Disciplinary Counsel Damon S. Manning appeared on behalf of ODC. Respondent did not appear. The Committee issued its report on February 6, 2014, recommending that Respondent be suspended from the practice of law for one year, make full restitution to Mr. Jabes and attend Ethics School. Thereafter, ODC filed a pre-argument brief on March 24, On April 9, 2014, ODC filed a motion to stay the proceedings in matter No. 13-DB-030 due to new formal charges in matter No. 14-DB-007 filed against Respondent on April 1, Board Panel C Chairman Mr. Butler ordered matter 13-DB-030 stayed pending further order of the Board. On July 7, 2014, ODC filed a motion to substitute counsel of record, substituting Charles B. Plattsmier for Damon S. Manning, whose employment with the ODC ended on July 1, On July 11, 2014, the Chairman issued an order recognizing Mr. Plattsmier as counsel of record in these proceedings. On January 21, 2015, Board Panel A Chair ordered that the two disciplinary proceedings pending against Responded bearing Docket No 13-DB-030 and No 14- DB-007 be consolidated pursuant to ODC s January 8, 2015 motion to consolidate the matters. II. 14-DB-007 As noted above, ODC filed the formal charges in matter 14-DB-007 against Respondent on April 1, By letters dated April 3, 2014, the formal charges were sent to Respondent s primary bar registration address and last known address via certified mail. 5 The charges sent to the last known address were received and signed for by Marie Hymel, and the signed green card return receipt was received by the Disciplinary Board on April 7, Respondent s primary registration address is th St., Covington, Louisiana His last known address is 1060 Peninsula Dr., Slidell, Louisiana

4 Respondent failed to file an answer to the charges within the time period allowed by Louisiana Supreme Court Rules XIX, 11(E)(3). 6 Accordingly, ODC filed a motion to have the formal charges deemed admitted on June 11, The Hearing Committee Chair signed an order declaring the formal charges deemed admitted and proven by clear and convincing evidence on July 15, Respondent was granted twenty days in which to file a motion to recall the order, which he failed to do. ODC filed its written argument on sanctions, with supporting exhibits, on August 22, Hearing Committee No. 15 issued its report on January 6, 2015, finding that Respondent violated the Rules of the Rules of Professional Conduct as charged and recommending that Respondent be suspended from the practice of law for a period of six months with no deferral. III. Consolidation As previously stated, ODC filed a motion to consolidate the two matters on January 8, On January 21, 2015, Board Panel A Chairman Carl Butler ordered that the two disciplinary proceedings pending against Responded bearing Docket No 13-DB-030 and No 14- DB-007 be consolidated and the stay in matter 13-DB-030 be lifted. The consolidated matters were then set for oral argument before the Board. 6 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 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. 4

5 In anticipation of oral argument, ODC filed a pre-argument memorandum on January 9, Respondent filed a pre-argument memorandum on February 27, Oral argument of this matter was held on March 5, 2015, before Board Panel B. 7 Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC, and Mr. Hymel appeared on his own behalf. FORMAL CHARGES The formal charges in matter 13-DB-030 read, in pertinent part: Count 1 On November 1, 2012, ODC received a complaint filed against Respondent by client Jerome Jabes. The matter was assigned investigative file number and is summarized as follows. On April 10, 2012, Jerome Jabes hired Respondent to probate the Will of decedent Ann Spence. That same date, Mr. Jabes paid Respondent a flat fee of $ plus $ for filing fees; for a total payment of $ Thereafter, Respondent neglected the case, failed to properly communicate with his client, and provided his client with false information as follows. On April 11, 2012, Mr. Jabes provided Respondent with a list of the decedent's assets and debts known at that time. Respondent acknowledged his receipt of same. On April 13, 2012, Mr. Jabes ed Respondent to inquire about written confirmation of their engagement agreement. On April 20, 2012, Respondent replied as follows: "Sorry for tardy response. This will confirm that Jerry Jabes has retained Scott R. Hymel, Esq. to probate the succession of decedent, Ann C. Spence. Mr. James has remitted payment of for my services and filing fees for the succession pleadings." On Friday, July 27, 2012, Mr. Jabes spoke to Respondent by telephone and inquired about the status of Ann Spence's succession. Respondent advised Mr. Jabes that he would call him back on Monday, July 30, 2012, with an update on the filing of same. By August 2, 2012, Respondent had not contacted Mr. Jabes with the promised update. Mr. Jabes ed Respondent that date but received no response. 7 Panel B is composed of Edwin G. Preis, Jr. (Chairman), Walter D. White (Lawyer Member), and George L. Crain, Jr. (Public Member). 5

6 On August 20, 2012, at 9:44 a.m., Mr. Jabes ed Respondent to express his displeasure with the lack of diligence and lack of communication. Mr. Jabes' stated, "I have repeatedly tried to contact you by both phone and during the time you have worked on the probate of the succession of Ann Spence. Our last call was Friday, July 27, where you said you were driving back from Houston. You told (sic) me you were going to call the next Monday with an update. There was no call with an update. I have left a voic and sent an requesting a call. Today is two weeks since you were to have called me. "You originally said this procedure should take about 2 months. It has now been over 4 months and I would like to know what is going on. I am at work and expect to be going offshore this afternoon. I will be on my cell phone till noon. Please call or me the current status. "If I do not hear from you there seems to be no recourse other than contacting the Louisiana Bar Association." Respondent replied by on August 20, 2012, at 10:18 a.m., stating, "Jerry, I truly apologize for my non communication. I am in a mini trial and just saw your . I get back to Covington on [Wednesday]. I also realize that the succession is taking longer than I expected. I really feel bad and will make it my priority to get it finalized as soon as possible. When I get back on [Wednesday] I will go to court to move the pleadings with the judge. I really feel badly and will facilitate the succession for half the fee I was paid and refund 1/2 to the estate as I feel that is the fair thing to do." On October 2, 2012, Respondent ed Mr. Jabes stating, "Jerry, sorry I have been out of touch but have been dealing with family chaotic issues in Belize but back this week. I will 'walk through' the succession with court and get the process completed by next week and refund 1/2 my fee." Having heard nothing further from Respondent, Mr. Jabes ed him on October 23, 2012 to inquire if the succession had been filed and for an estimated time of completion. Respondent failed to respond. 6

7 On October 30, 2012, Mr. Jabes ed Respondent and asked him to "please respond" to his earlier request for an update. Respondent failed to respond. On October 31, 2012, Mr. Jabes contacted the St. Tammany Parish Clerk of Court's Office and confirmed that Respondent had not filed the succession. He then filed a disciplinary complaint against Respondent, which ODC received on November 1, Not only has Respondent failed to perform the work for which he was hired and paid, Mr. Jabes reports that Respondent has the original Will and Death Certificate and Mr. Jabes cannot proceed without them. On March 19, 2013, ODC contacted the St. Tammany Parish Clerk of Court's Office and confirmed that Respondent had not filed the succession. Respondent neglected the succession and failed to file the appropriate pleadings to even open the succession. Respondent clearly violated Rule 1.3 (failed to act with reasonable diligence and promptness in representing a client). Respondent failed to properly communicate with his client, and failed to update him on the status of the succession despite multiple requests. Respondent clearly violated Rule 1.4 (failed to properly communicate with a client). When Respondent did communicate with Mr. Jabes, he misled him by stating he would make the matter a priority, he would "walk through" the pleadings, and on October 2, 2012, he promised to have the matter completed within two weeks. Respondent did none of these things. Respondent clearly violated Rule 8.4(c) (engaged in conduct involving dishonesty, fraud, deceit or misrepresentation). Respondent has not completed the representation despite having been paid in full for same. Respondent has not filed the succession despite having been paid in advance for the filing fees. Respondent twice informed Mr. Jabes he would refund [half] of the fee and complete the matter, but failed to do either. Respondent clearly violated Rule 1.5(f)(5) (failed to refund an unearned fee). On November 12, 2012, ODC forwarded a copy of Mr. Jabes' complaint to Respondent by certified mail addressed to Respondent's primary bar registration address at th St., Covington, Louisiana Respondent personally received and signed for the complaint on November 19, 2012, making his response due on December 4, Respondent failed to respond. On February 21, 2013, ODC issued a subpoena to compel Respondent's sworn statement and production of his file in connection with the underlying matter. ODC Staff Investigator Clay Smith attempted unsuccessfully to locate/contact/serve Respondent. Investigator Smith went to Respondent's primary bar registration address. No one was present and he left his business card on the door. Investigator Smith located and visited what turned out to be Respondent's former law firm. Investigator Smith was informed that Respondent no longer worked at the firm. He obtained a contact number for Respondent and left several voice mail messages for Respondent but received no return call. Respondent personally received and signed for the complaint but failed to respond. ODC Staff Investigator Clay Smith made multiple attempts to serve Respondent but received no cooperation. Respondent has failed and/or refused to 7

8 respond in any way to Mr. Jabes' complaint to date. Respondent has clearly violated Rule 8.1(c) (failed to cooperate with ODC in its investigation of lawyer misconduct). By engaging in professional misconduct, Respondent has also violated Rule 8.4(a) (violated or attempted to violate the Rules of Professional Conduct). The formal charges in matter 13-DB-030 read, in pertinent part: In January of 2012, Shannon Scott hired Respondent on a contingency fee basis to represent her in a suit for specific performance. On October 25, 2013, Ms. Scott terminated Respondent's services in writing and requested the return of her file. She scheduled a meeting to pick up her file from Respondent on October 29, 2013, at 9:30 a.m., but Respondent canceled the meeting and instead offered to deliver the file to Ms. Scott's house. Ms. Scott agreed as long as Respondent delivered the file by October 29, Despite their agreement, Respondent failed to deliver the file. On October 25, 2013, Ms. Scott retained other counsel, including Alex Ducros, to represent her in the specific performance claim. Mr. Ducros' initial efforts to locate Respondent and retrieve Ms. Scott's file were unsuccessful. Beginning on November 12, 2013, Mr. Ducros initiated a series of text messages with Respondent in an effort to obtain Ms. Scott's file. Despite multiple promises to return the file, Respondent failed to do so. To date, Respondent has failed and/or refused to return Ms. Scott's file. Whether or not Ms. Scott has been harmed by Respondent's refusal to return the file is unknown due to the fact neither Ms. Scott nor Mr. Ducros know what information or documents are contained in Respondent's file. Ms. Scott terminated Respondent's services and requested the return of her file. Ms. Scott's current attorney also requested the return of the file. Despite multiple promises by Respondent that he would return the file, he failed and/or refused to do so. Respondent's conduct violated Rule 1.16(d) (failed to protect his client's interests upon termination of the representation). Furthermore, Respondent violated Rule 8.4(c) (engaged in conduct involving dishonesty and misrepresentation) by repeatedly making false promises to Ms. Scott and Mr. Ducros that he would hand-deliver or mail the file to them. On December 17, 2013, ODC forwarded a copy of Ms. Scott's complaint to Respondent by certified mail addressed to Respondent's primary bar registration address at th St., Covington, Louisiana The complaint was received and signed for by someone with the last name Hymel on December 28, Respondent's response to the complaint was due 15 days from its receipt. 8

9 On December 17, 2013, ODC also forwarded a copy of Ms. Scott's complaint to Respondent's other last known address at 1060 Peninsula Dr., Slidell, Louisiana Respondent personally received and signed for the complaint on December 20, Respondent's response to the complaint was due 15 days from its receipt. Respondent has failed and/or refused to respond to Ms. Scott's complaint. His failure to cooperate with ODC s investigation of lawyer misconduct is a violation of Rule 8.1(c). By engaging in professional misconduct, Respondent has also violated Rule 8.4(a) (violated or attempted to violate the Rules of Professional Conduct). THE HEARING COMMITTEE REPORTS I. 13-DB-030 In matter 13-DB-030, Hearing Committee No. 57 (the Committee ) concluded that the Office of Disciplinary Counsel proved the allegations of misconduct against the Respondent by clear and convincing evidence. The Committee found that the following Rules, as charged in the formal charges, were violated: The Respondent failed to act with reasonable diligence and promptness in the representation of a client in violation of Rule 1.3; failed to properly communicate with his client about the status of the representation in violation of Rule 1.4(a); failed to refund an unearned fee in violation of Rule 1.5(f)(5); failed to cooperate with the Office of Disciplinary Counsel in its investigation of allegations of lawyer misconduct in violation of Rule 8.1(c); and violated Rule 8.4(a) by violating the aforementioned Rules. The Committee declined to find a violation of Rule 8.4(c). The Committee then evaluated the factors set forth under Rule XIX, 10(c) and determined that Respondent s conduct violated multiple duties owed to his client Jerome Jabes, that his mental element with regard to those violations was knowing, and that he caused both actual harm (failure to return a clearly unearned fee) and potential harm, inasmuch as the succession proceeding for which he was hired by Mr. Jabes was delayed. 9

10 Relying on Standard 4.42 of the ABA Standards for Imposing Lawyer Sanctions, the Committee concluded that the baseline sanction for the Respondent s misconduct was a period of suspension. In mitigation, the Committee found the absence of a prior disciplinary record. However, in aggravation, the Committee concluded that he had a dishonest or selfish motive by failing to return unearned fees for an extended period of time; that he had substantial experience in the practice of law having been admitted since October 15, 1999; and that he was indifferent to making restitution. The Committee was particularly troubled by his failure to make restitution after having promised to do so on at least two prior occasions. Based upon all of the evidence and considering the ABA Standards, the Committee concluded the Respondent should be suspended from the practice of law for one year with the caveat that he not be reinstated to practice until he pays full restitution to Mr. Jabes in the amount of $910, attend Ethics School, and pay all costs associated with these proceedings. II. 14-DB-007 In matter 14-DB-007, Hearing Committee No. 15 (the Committee ) issued its recommendation finding that the evidence presented by the Office of Disciplinary Counsel was both clear and convincing that Respondent failed to deliver Ms. Scott s file following the termination of his representation; that he repeatedly falsely represented to her that he would deliver the file; and that he failed to cooperate in the Office of Disciplinary Counsel s investigation. The Committee found that the following Rules, as charged in the formal charges, were violated: The Respondent failed to protect his client s interests upon termination of representation in violation of Rule 1.16(d); failed to cooperate with the Office of Disciplinary Counsel in its investigation of allegations of lawyer misconduct in violation of Rule 8.1(c); 10

11 engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c); and violated Rule 8.4(a) by violating the aforementioned Rules. Committee No. 15 described the analysis required under Section 10(c) of Rule XIX and implicitly determined that the Respondent s actions represented a violation of duties owed to his clients. The Committee determined that Mr. Hymel s mental element was knowing, and that his conduct created the potential for harm as Ms. Scott was deprived of the information relevant to her claim owing to his failure to return her file. The Committee concluded that Standard 7.2 of the ABA Standards for Imposing Lawyer Sanctions was applicable and that a period of suspension was appropriate. The Committee noted as an aggravating factor, the Respondent s lack of cooperation or response to the complaint or the disciplinary proceedings. The Committee found no mitigating factors. The Committee concluded that a six month period of actual suspension (none deferred) was appropriate and that Mr. Hymel be held responsible for all costs of the proceedings. ANALYSIS I. The Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. 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 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 11

12 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 (1/22/1992). A. The Manifest Error Inquiry The factual findings of both Committees are supported by the record and are not manifestly erroneous. B. De Novo Review The Committees correctly applied the Rules of Professional Conduct, with one exception addressed below. In addition to the Rule violations found by both Committees, the Board also finds a violation of Rule 8.4(c), as alleged in the formal charges filed in matter 13-DB-030. Each Rule is briefly discussed below: Rules 1.3 & 1.4: Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness in representing a client. Rule 1.4(a) states, generally, that a lawyer shall maintain sufficient and reasonable communication with a client. Rule 1.4(b) states that a lawyer shall give a client sufficient information to participate intelligently in the decisions regarding the representation. Here, Respondent was hired by Mr. Jabes to probate the will of decedent Ms. Spence. Not only did Respondent fail to work on the succession, he repeatedly made false statements to Mr. Jabes indicating that he was working on the matter when he was not. Accordingly, the record supports the conclusion that Respondent violated Rules 1.3 and 1.4. Rule 1.5(f)(5): Rule 1.5(f)(5) states that when a client pays a lawyer a fixed or advance fee and a fee dispute arises between the lawyer and the client, the lawyer shall immediately refund to the client any unearned portion of such fee. Mr. Jabes paid a $ fee plus an additional $ in court costs to Respondent on April 10, 2012 to handle the succession of Ms. Spence. To date, Respondent has refused to complete the work he was hired to handle, and failed to refund 12

13 $ to Mr. Jabes. Accordingly, the record supports the conclusion that Respondent violated Rules 1.5(f)(5). Rule 1.16(d): Rule 1.16(d) states that, upon termination of representation, a lawyer shall take reasonable steps to protect a client s interests, which includes returning files and other property belonging to the client, as well as any unearned fees. Respondent violated Rule 1.16(d) with respect to the unearned fees he failed to return to Mr. Jabes, and by his failure to return Ms. Scott s file, after repeated requests that he do so. Accordingly, the record supports the conclusion that Respondent violated Rules 1.16(d). Rule 8.1(c): Rules 8.1(c) provides that a lawyer, in connection with a disciplinary matter, shall not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority or fail to cooperate with ODC in its investigation of any matter before it. Respondent failed to respond to the disciplinary charges filed against him in matter 14-DB-007. He also failed to respond to telephone calls and correspondence from ODC, failed to participate in telephone conference calls and failed to appear at the hearing held in matter 13-DB-030. Accordingly, the record supports the conclusion that Respondent violated Rule 8.1(c). Rule 8.4(c): Rule 8.4(c) states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Committee No. 57 did not specifically address this rule violation; however, in its discussion of the duties violated, the Committee found that Respondent misled Mr. Jabes as to the steps he would take and timeframe within which he would complete the representation. See Hearing Committee No. 57 Report, p. 8. The record reflects that Respondent repeatedly misrepresented to Mr. Jabes that he was working on Ms. Spence s succession, when he was not. Accordingly, the record supports the conclusion that Respondent violated Rule 8.4(c). 13

14 Rule 8.4(a): Rule 8.4(a) states that it is professional misconduct to violate or attempt to violate the Rules of Professional Conduct. By violating the Rules above, Respondent violated this 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 his duties owed to his clients, the profession, and the legal system. Respondent appears to have knowingly violated the Rules of Professional Conduct. 8 Respondent s actions caused harm to his clients in that Respondent failed to probate the will of decedent Ann Spence and failed to refund the $ paid by Mr. Jabes for legal services never performed. In addition, Respondent has never returned Ms. Scott file, after repeatedly promising to do so. The following aggravating factors are present: dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, substantial experience in the practice of law 9, and indifference to 8 In his response to the formal charges filed in matter 13-DB-030, Respondent stated in pertinent part, I have been recalcitrant in my affairs and have indeed been non-communicative due to my depression. See 7/12/13 Response Formal Charges, p.1. 9 Respondent was admitted to the practice of law on October 15,

15 making restitution. Committee No. 57 noted that in his answer to the formal charges, Respondent reports having gone through a difficult divorce, in addition to other family issues and also lost his law practice. 10 Respondent further reported that he suffers from depression and was seeking treatment. Although these allegations may have served to mitigate the sanction, Respondent was given the opportunity to submit documentation in support of these claims, but failed to do so. Therefore, the Board finds the only applicable mitigating factor to be Respondent s lack of a prior disciplinary history. B. The ABA Standards and Caselaw A review of the ABA Standards for Imposing Lawyer Sanctions indicates that suspension is the appropriate baseline sanction for Respondent s conduct in these consolidated matters. Standard 4.42 states: 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 pattern of neglect and causes injury or potential injury to a client. Standard 4.62 states: Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client. Respondent knowingly neglected Mr. Jabes case while repeatedly promising to take expedited steps to complete the matter. Mr. Jabes was never refunded the $ he paid, and the succession matter was unnecessarily delayed, and ultimately, never completed by Respondent. In addition, Respondent has yet to return Ms. Scotts file to her, resulting in unnecessary delay in her case. The potential harm to Ms. Scott is unknown because neither she nor her new lawyer knows what information or documents are contained in Respondent s file that might be of benefit to her. 10 Hearing Committee No. 57 Report, p

16 Accordingly, based upon the ABA Standards, suspension is the baseline sanction in this matter. Considering Respondent s refusal to respond to his clients, his failure to cooperate with ODC, and the aggravating factors, the case law indicates that an eighteen month suspension is warranted for his misconduct. The Court in In re Trichel, suspended respondent for eighteen months due to his mishandling of a single client matter (La. 08/31/2000), 767 So.2d 694. Mr. Trichel neglected his client s legal matter for over a year and performed no work on his client s behalf. Moreover, during the course of his representation, his client made numerous and repeated requests for information on the status of the matter. Mr. Trichel failed to respond to his client s letters and telephone calls, and he failed to keep the client informed of the status of the case. He also failed to surrender the file to his client upon written request. Mr. Trichel failed to answer or otherwise reply to the formal charges. The Court recognized that the baseline sanction for neglect of a client matter, failure to communicate, and failure to properly terminate the representation of one client was a one-year suspension from the practice of law. However, significant aggravating factors were present, including prior discipline, pattern of misconduct, obstruction of the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law (admitted in 1974) and indifference to making restitution. The sole mitigating factor was the absence of a dishonest or selfish motive. The Court found that the aggravating factors in the case, particularly the respondent s prior discipline for similar misconduct, justified raising the sanction to an eighteen month suspension. In In re Bradley, Mr. Bradley was suspended for eighteen months, with five months deferred, for his failure to represent a client in a competent and diligent manner, failure to 16

17 adequately communicate with his client and failure to refund the unearned legal fees to his client in a timely manner (La. 6/4/04), 875 So.2d 67. The Court determined that several aggravating factors existed, including prior disciplinary offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. The Court found no mitigating factors, but noted that he belatedly made full restitution to his client. Accordingly, the Court suspended Mr. Bradley for a period of eighteen months with five months deferred. In the present matter, the charges filed against Mr. Hymel involve a single count of neglect of a legal matter, failure to communicate with a client, and failure to properly terminate the representation of a client, as well as charges of failure to refund unearned fees and failure to cooperate with ODC. Additionally, Respondent failed to respond to repeated attempts by Ms. Scott to retrieve her file, and failed to cooperate with ODC in its investigation of the matter. Furthermore, there are several aggravating factors present and only a single mitigating factor (lack of disciplinary history). Consequently, an eighteen month suspension from the practice of law as imposed in both the Trichel and Bradley matters is warranted for Respondent s misconduct alleged in the matter at hand. 17

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19 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: SCOTT ROBERT HYMEL DOCKET NOS. 13-DB-030 c/w 14-DB-007 CONCUR IN PART/DISSENT IN PART Although I concur with the factual findings in this case, I respectfully dissent from the sanction recommended by the majority. I believe a two (2) year suspension is the appropriate sanction in this matter. LOUISIANA ATTORNEY DISCIPLINARY BOARD By: GEORGE L. CRAIN, JR. Adjudicative Committee Member 18A

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21 APPENDIX 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 *** (f) Payment of fees in advance of services shall be subject to the following rules: *** (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 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 19

22 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 1.16 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. 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: *** (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; *** (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; *** 20