ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: EDWARD BISSAU MENDY NUMBER: 14-DB-041 RECOMMENDATION TO THE LOUISIANA SUPREME COURT

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD 14-DB-041 3/11/2016 IN RE: EDWARD BISSAU MENDY NUMBER: 14-DB-041 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This attorney disciplinary matter arises out of formal charges consisting of three counts filed by the Office of Disciplinary Counsel ( ODC ) against Edward Bissau Mendy ( Respondent or Mr. Mendy ), Louisiana Bar Roll No Mr. Mendy is currently ineligible to practice law in Louisiana. 1 In the charges, it is alleged that Respondent violated the following Rules of Professional Conduct ( Rule(s) ): Rule 1.1(a) (competence); Rule 1.3 (diligence); Rule 1.4(a) (communication); Rule 1.15(a) (safekeeping property); Rule 1.16(d) (terminating representation); Rule 8.1(c) (failure to cooperate with the ODC); and Rule 8.4(a) (violation of the Rules of Professional Conduct). 2 Respondent failed to answer the formal charges, which became deemed admitted pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). 3 The hearing committee assigned to this matter concluded that Respondent violated 1 Respondent was suspended for three years effective May 18, 2012 and has not sought reinstatement to the practice of law. Prior to that suspension, he was suspended for six months on August 31, The text of the rules is contained in the attached Appendix. 3 Louisiana Supreme Court Rule XIX 11(E)(3): 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(C). Within twenty (20) days of the mailing of the order of the hearing 1

2 the Rules as charged and recommended that he be suspended from the practice of law for one year and one day. 4 For the following reasons, the Board adopts the factual findings and legal conclusions of the Committee. However, the Board finds the one year and one day sanction recommended by the Committee to be too lenient. Accordingly, the Board recommends that Respondent be suspended from the practice of law for three years. PROCEDURAL HISTORY The formal charges were filed on September 10, 2014 and mailed to Respondent by certified mail to his primary bar registration address 5, his secondary mailing address 6 and a third known address. 7 Respondent failed to file a response to the charges, and on March 12, 2015, ODC filed a Motion to Declare Factual Allegations Deemed Admitted. On March 20, 2015, Respondent contacted ODC via and supplied the office with a new mailing address. 8 On March 27, 2015, ODC mailed the formal charges by certified mail to Respondent s newest address. Respondent accepted and signed for the formal charges on April 14, On June 11, 2015, an order was signed by the hearing committee chair finding the factual allegations to have been deemed admitted and proven by clear and convincing evidence 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 Hearing Committee No. 12 is composed of Stephen H. Kupperman (Chairman), Raymond A. Osborne, Jr. (Lawyer Member) and Robert P. Ventura (Public Member) Saint Mary s Place, Nutley, New Jersey (correspondence returned marked unclaimed/unable to forward ) Coliseum Street, New Orleans, Louisiana, (correspondence returned marked unclaimed/unable to forward ) Laurel Lane, Kinnelon, New Jersey, (correspondence returned marked unclaimed/unable to forward ) Eric Drive, Kinnelon, New Jersey,

3 pursuant to Louisiana Supreme Court Rule XIX, Section 11(E)(3). Respondent was allowed twenty days from the date of mailing to move to recall the order and the parties were allowed to submit documentary evidence and written arguments on the issue of sanctions. Respondent did not move to recall the order nor did he make a submission on the issue of sanctions. ODC filed its deemed admitted submission on sanctions on August 25, The hearing committee issued its report on October 12, In anticipation of oral argument, ODC filed a pre-argument memorandum on December 17, Respondent did not file a pre-argument memorandum. Oral argument was heard by Board Panel A on January 21, Deputy Disciplinary Counsel Yolanda Cezar appeared on behalf of ODC. Respondent did not appear at oral argument. FORMAL CHARGES The formal charges read, in pertinent part: Count I - Investigation File No Complainant - ODC On December 19, 2010, respondent issued a check from his client trust account at Chase Bank ending in 5892 in the amount of $108, made payable to the United States District Court. The check was returned due to insufficient funds in the account. An investigation regarding this matter revealed that Respondent maintains at least two client trust/iolta accounts; XXXX0429 and XXXX5892. Respondent submitted trust account disclosure forms in 2006 and In 2006, he stated that because of the nature of his practice, he did not maintain a trust account. From , Respondent reported that his law practice was domiciled in a state other than Louisiana and that he did not maintain a client trust or escrow account(s) in Louisiana branches or multi-state branches. In 2011, Respondent registered a trust account with Chase bank, account number XXXX0429. Bank statements for account number 0429 for the period of October 1, 2010 December 31, 2010 reveal that Respondent made several electronic withdrawals and cash withdrawals; however, there was no notation that the withdrawals were associated with a client matter. 9 Board Panel A is composed of Carrie L. Jones (Chair), Melissa L. Theriot (Lawyer Member) and Charles H. Williamson, Jr. (Public Member). 3

4 Notice of the complaint was forwarded to Respondent at his primary registration address, One Liberty Place Ste. 3600, 1650 Market Philadelphia, PA 19103, via certified mail with return receipt request. The ODC received the return receipt bearing a signature as acknowledgment that Respondent received the notice on or about February 15, Thereafter, ODC Auditor Angela Willis contacted Respondent via telephone, and also forwarded several requests to Respondent for additional documentation in order to continue the investigation. Respondent failed to respond to the request. As a result, Respondent was personally served with a subpoena on April 7, 2011 commanding him to appear at the ODC on April 21, 2011 to submit a sworn statement regarding the matter and also to submit the information that had been previously requested. Respondent failed to appear. Respondent s actions are a violation of the following Rules of Professional Conduct: 1.1(c), 1.15(a), 8.1(c) and 8.4(a) Count II - Investigation File No Complainant - Gilbert Charles Respondent was retained to open and complete the succession of complainant s son, Adolph Orlando Charles. Complainant has receipts for payments made to Respondent totaling $3,300. This amount includes a check that was issued to Respondent s firm, Mendy & Beekman on April 5, 2010 for $500 with the notation Home Health in the memorandum line. Complainant explains that Respondent requested that he make a payment on his behalf towards a home health venture that he was pursuing and that he would credit it towards his fee for handling the succession matter. Respondent prepared a Petition for Appointment of Administrator and Verification; however he never filed the petition or any other pleadings pertaining to the succession matter. Suzette Charles, the decedent s sister, and Raquel Brown Williams, the mother of his minor child, both filed petitions to open the succession. The cases were eventually consolidated. There is no record that Respondent took any action on behalf of Mr. Charles regarding his son s succession. Notice of the ethical complaint was forwarded to Respondent at both his primary and secondary bar registration addresses via certified mail with a return receipt request. Respondent was instructed to provide a substantive response, with documentation to each allegation of misconduct within fifteen calendar days from the date of receipt of the letter. The ODC received the return receipt bearing a signature which appears to read Tobin indicating that the notice that was forwarded to Respondent at his One Liberty Place Ste. 3600, Philadelphia, PA address was received on or about June 10, The ODC received the return receipt card bearing Respondent s signature acknowledging receipt of the notice that was forwarded to him at his 96 Saint Mary s Place, Nutley, NJ address. The card indicates that the notice was received on or about August 17, Respondent failed to respond to the ethical complaint as instructed. Respondent s actions are a 4

5 violation of the following Rules of Professional Conduct: 1.1(a), 1.3, 1.4(a), 1.16(d), 8.1(c) and 8.4(a). Count III - Investigation File No.: Complainant - Cornell Platt Respondent was retained for representation regarding a breach of contract claim. Complainant entered into a contract to purchase a vehicle from the used car dealership Import One of Baton Rouge. Import One agreed to accept complainant s current vehicle as a trade-in towards the purchase of another vehicle. The balance owed was $7,000. Complainant secured a loan for the balance owed and thereafter, executed the trade of the vehicles. Approximately one month later, after complainant failed to surrender the title to the vehicle that he traded, Import One repossessed the new vehicle and refused to return the tradein vehicle. Complainant states that at some point prior to filing suit, the attorney representing the finance company admitted to having made a mistake regarding his matter and offered him $5,000 and promised to correct any negative entries to complainant s credit. Complainant states that Respondent advised him not to accept the offer and to proceed with a lawsuit. On July 22, 2010, Respondent filed suit in the U.S. Eastern District of Louisiana. Cornell Platt v. Import One, inc. et al. On September 13, 2011, the Court issued a Show Cause Order wherein Respondent was ordered to appear before the Court on September 28, 2011 to show cause why the case should not be dismissed for failure to appear for the Call Docket held on August 31, 2011 and for failure to make proper service of process upon the defendants in the matter. As a result of Respondent s failure to appear at the Show Cause Hearing and failure to provide the Court with current contact information, complainant s case was dismissed with prejudice. On March 30, 2012, notice of the ethical complaint was forwarded to Respondent at both his primary and secondary bar registration addresses via certified mail with a return receipt request. Respondent was instructed to provide a substantive response, with documentation to each allegation of misconduct within fifteen calendar days from the date of receipt of the letter. Both notices were returned to the ODC marked unclaimed and Respondent failed to respond. Respondent s actions are a violation of the following Rules of Professional Conduct: 1.1(a), 1.3, 1.16(d), 8.1(c) and 8.4(a) HEARING COMMITTEE REPORT As stated above, the formal charges in this matter were deemed admitted and proven by clear and convincing evidence by order of the Committee chairman. Accordingly, no formal hearing was held. The Committee issued its report on October 12, The Committee concluded that Respondent violated the Rules as charged in the formal charges. 5

6 In addressing the factors contained in Louisiana Supreme Court Rule XIX, 10(C), the Committee concluded that Respondent violated his duties to his clients, the public, the legal system and to the legal profession. The Committee concluded that he did so knowingly and intentionally, causing actual harm to his clients. The Committee found the following aggravating factors to be applicable: dishonest or selfish motive, a pattern of misconduct, multiple offenses, intentionally failing to comply with the rules and orders of the disciplinary system, refusal to acknowledge his wrongful conduct, vulnerability of the victims, and an indifference to making restitution. The Committee did not cite any mitigating factors. The Committee relied upon the ABA Standards for Imposing Lawyer Sanctions Standards 4.11, 4.12, 4.41, and 4.42 in determining that a suspension was the appropriate baseline sanction. After reviewing prior jurisprudence, the Committee determined that a one year and one day suspension was the appropriate sanction. See e.g., In re Regan, (La. 10/15/04); 885 So.2d 514, In re Kurzweg, (La. 4/2/04); 870 So.2d 978, In re Booth, (La. 3/17/09); 6 So.3d 158). 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, 6

7 549 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). De novo review indicates that the Committee correctly applied the Rules of Professional Conduct. The factual allegations in the formal charges and the documentary evidence support the Rule violations as charged, including Rules 1.1, Rule 1.3, Rule 1.4(a), 1.15(a), Rule 1.16(d), Rule 8.1(c), and Rule 8.4(a). Each Rule is briefly discussed below. Rule 1.1 and Rule 1.3: Rule 1.1(a) states that a lawyer shall provide competent representation to a client. Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness when representing a client. In Count II, Respondent failed to take any action whatsoever on behalf of Mr. Charles regarding his son s succession. In Count III, Respondent failed to appear on behalf of Mr. Platt at a hearing and failed to provide the Court with current contact information, resulting in the dismissal of Mr. Platt s case with prejudice. Accordingly, the record supports the conclusion that Respondent failed to act with reasonable diligence and competence in pursuing his clients claims in violation of Rule 1.1 and Rule 1.3. Rule 1.4: Generally, Rule 1.4 requires that a lawyer maintain adequate communication with his clients. In Count II and III, Respondent failed to maintain adequate communication with either Mr. Charles or Mr. Platt, including failing to even keep Mr. Platt informed of upcoming court appearances. Accordingly, the record supports the conclusion that Respondent violated Rule 1.4. Rule 1.15(a): Rule 1.15(a) states that a lawyer shall hold his client s property separate from the lawyer s own property. ODC s audit of Respondent s client trust account revealed that Respondent made electronic withdrawals and cash withdrawals from his trust account and failed to provide proof that the withdrawals were associated with client matters. Respondent also 7

8 issued a check from his client trust account to the district court which was returned due to insufficient funds in his client trust account. Accordingly, the record supports the conclusion that Respondent violated Rule 1.15(a). 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 the client s file and any unearned fee. In Count II, Mr. Charles paid Respondent at least $3,300 to address his deceased son s succession. 10 As stated above, Respondent failed to complete the representation. In Count III, Mr. Platt paid Respondent $1500 to handle a breach of contract claim, which was ultimately dismissed due to Respondent s lack of diligence and competence. Respondent has failed to refund any fees to either client. Accordingly, the record supports the conclusion that Respondent violated Rule 1.16 (d). Rules 8.1(c): Rule 8.1(c) states that a lawyer shall cooperate with the ODC in its investigation of the lawyer s misconduct. Respondent failed to respond to the ethical complaints filed against him in three counts of misconduct. In Count I, Respondent also failed to respond to ODC s requests for information and failed to appear in response to a subpoena directing him to appear at a sworn statement. Accordingly, Respondent is in violation of Rule 8.1(c). Rule 8.4(a): Rule 8.4(a) states that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct. Here, by violating the Rules discussed above, Respondent violated Rule 8.4(a). 10 The complaint states that Respondent was paid $4, in fees, however the record only includes cancelled checks evidencing $3,300 paid to Respondent. The complainant states that the remaining $1400 was paid in cash and that no receipts were issued for the amount paid in cash to Respondent. 8

9 II. The Appropriate Sanction A. Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, Section 10(C) states that in imposing a sanction after a finding of lawyer misconduct, the court or board shall consider the following factors: 1. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2. whether the lawyer acted intentionally, knowingly, or negligently; 3. the amount of actual or potential injury caused by the lawyer's misconduct; and 4. the existence of any aggravating or mitigating factors. Here, Respondent has knowingly, if not intentionally, violated a duty owed to his clients. His conduct caused substantial harm to his client Mr. Charles, who paid Respondent $3, to complete his son s succession. As explained above, Respondent failed to take any action whatsoever in the matter including failing to file any pleadings with the court. His second client, Mr. Pratt, was harmed when he paid $1500 to Respondent to handle a breach of contract claim which was ultimately dismissed with prejudice due to Respondent s failure to appear at a Show Cause Hearing and failure to follow the court s orders. The following aggravating factors are supported by the record: substantial experience in the practice of law, 11 vulnerability of the victims, prior disciplinary offenses, 12 refusal to acknowledge the wrongful nature of his conduct, indifference to making restitution, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and intentionally failing to comply with the rules or orders of the disciplinary agency. There are no mitigating factors in the record. 11 Respondent was admitted to the practice of law in Pennsylvania on November 1, 1992 and in Louisiana on April 23, As noted above, Respondent is currently ineligible to practice law, and has been suspended twice over the course of his 24 year legal career. 9

10 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 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. Here, the heartland of Respondent s misconduct is his neglect of both clients legal matters. He did not pursue those matters with reasonable diligence, ultimately causing significant financial harm to his clients. The financial harm, in the form of failing to return unearned fees, remains unresolved. A review of disciplinary case law indicates that this matter falls within the range of a two-year suspension to disbarment. In In re Lewis, Mr. Lewis was suspended from practice for two years after being adjudged guilty of three counts of neglecting legal matters, failing to communicate with his clients, failing to account for funds received from the clients or on their behalf, failing to properly withdraw from the cases upon relocating out of state, and failing to cooperate with the ODC in its investigation (La. 1/21/09); 1 So.3d 444. The Court found in aggravation: prior disciplinary offenses (a formal private reprimand with notice in 1991 and an admonition in 1995), a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to cooperate with the rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law, and an indifference to making restitution. The Court found no mitigating factors present. The Court determined that the aggravating factors and the lack of mitigating factors necessitated an upward deviation from the one year baseline. 10

11 In In re Hawkins, the Court suspended Mr. Hawkins for two years for two counts of misconduct relating to his failure to exercise reasonable diligence, failure to maintain adequate communication, failure to return unearned fees, misleading clients as to the status of their legal matters, and failure to cooperate with ODC s investigation (La. 2/22/08); 974 So.2d Mr. Hawkins allowed the formal charges to become and remain deemed admitted. The Court recognized the following aggravating factors: prior disciplinary offenses (public reprimand); dishonest or selfish motive; pattern of misconduct; multiple offenses; refusal to acknowledge the wrongful nature of the conduct; vulnerability of the victims; indifference to making restitution; and substantial experience in the practice of law. There were no mitigating factors present. In In re Hyman, the Court suspended Mr. Hyman for three years for two counts of misconduct relating to his failure to exercise reasonable diligence, failure to maintain adequate communication, improper termination of the representation, and failure to cooperate with ODC s investigation (La. 5/7/10); 34 So.3d 254. Mr. Hyman allowed the formal charges to become and remain deemed admitted. The Court recognized the following aggravating factors: prior disciplinary offenses (suspension); pattern of misconduct; multiple offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; vulnerability of the victims; and substantial experience in the practice of law. There were no mitigating factors present. In In re Turissini, the Court disbarred Ms. Turissini for two counts of misconduct relating to her failure to exercise reasonable diligence, failure to maintain adequate communication, improper termination of the representation, and failure to cooperate with ODC s investigation (La. 4/24/06); 927 So.2d Ms. Turissini allowed the formal charges to become 11

12 and remain deemed admitted. The Court recognized the following aggravating factors: prior disciplinary offenses (two prior suspensions); vulnerability of the victim; indifference to making restitution; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; pattern of misconduct; multiple offenses; and substantial experience in the practice of law. There were no mitigating factors present. The facts and circumstances of this matter are very similar to those in the matters discussed above. The misconduct under consideration in this matter is nearly identical in type and extent as the misconduct in Lewis, Hawkins, Hyman, and Turissini. Additionally, as in the cases discussed above, Respondent failed to cooperate with ODC s investigations and allowed the formal charges to become and remain deemed admitted. As in the aforementioned cases, there are several aggravating factors present in this matter and an absence of any significant mitigating factors. The one year and one day suspension recommended by the Committee appears to be too lenient considering the applicable case law as well as Respondent s two prior suspensions, the last from which he has not sought reinstatement. 13 The Board finds Respondent s conduct most similar to that of Mr. Hyman, whose disciplinary history similarly included a prior suspension from the practice of law, prior to being suspended for three years in Given the facts, applicable case law, and Respondent s prior disciplinary history, the Board recommends a three year suspension from the practice of law. 13 In response to an from ODC regarding his failure to respond to the formal charges filed against him, Respondent stated, since I have no desire or intention of returning to the practice of law at this time, I do not see the necessity of taking up ODC resources with the charges, I can respond to the charges if you need me to or can just choose not to seek a reinstatement of my license. Needless to say, should I ever decide to reinstate, you can always prosecute the charges. See June 11, from Mr. Mendy to Deputy Disciplinary Counsel Yolanda Cezar. 12

13 CONCLUSION The Board adopts the factual findings and legal conclusions of the Committee. However the Board recommends a suspension of three years, rather than a one year and one day suspension, from the practice of Jaw. Additionally, the Board recommends that Respondent pay restitution to the complainants and return all documents and files in his possession. Finally, the Board recommends that Respondent be assessed with the costs and expenses of this matter. RECOMMENDATION Considering the foregoing, the Board recommends that Respondent, Edward Bissau Mendy, be suspended from the practice of law for three years. Additionally the Board recommends that Mr. Mendy be required to pay restitution to the complainants and return all documents and files in his possession. Finally, the Board recommends that Respondent be assessed with all costs and expenses of these proceedings in accordance with Rule XIX, lo.l(a). LOUISIANA ATTORNEY DISCIPLINARY BOARD Linda G. Bizzarro Dominick Scandurro, Jr. R. Lewis Smith, Jr. Evans C. Spiceland, Jr. Melissa L. Theriot Walter D. White Charles /Williamso~, Jr. BY: -..~,u.: arrie L. Jones FOR THE ADJUDICATIVE COMMITTEE Laura B. Hennen- Dissents with reason. 13

14 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: EDWARD BISSAU MENDY DOCKET NO. 14-DB-041 DISSENT I would recommend disbarment. Mr. Mendy knew he had already had formal charges filed against him for similar actions when he conunitted these violations. He kept unearned fees, essentially converting client funds, and he took absolutely no action in two cases, in one allowing a client's claim to be dismissed with prejudice. These resulted in actual harm to his clients. He has made no effort to pay any restitution) and he did not cooperate with the board's investigation. In fact, he said that he "did not see the necessity" of responding to the investigation since he was not currently practicing law, indicating a failure to take the charges seriously. For these reasons, I feel disbarment is called for. LOUISIANA ATTORNEY DISCIPLINARY BOARD Adjudicative Committee Member

15 APPENDIX RULE 1.1. COMPETENCE A. lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 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: *** (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information. 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. 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 14

16 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; *** 15