ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JALILA ESHE BULLOCK NUMBER: 14-DB-033 INTRODUCTION

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JALILA ESHE BULLOCK NUMBER: 14-DB-033 RECOMMENDATION TO THE LOUISIANA SUPREME COURT l.uuisiana \!torn.:\ Disl i 1linan Boar d FILE D by:~-~ Docket# Filed-On 14-DB-033 1/12/2016 INTRODUCTION This is an attorney discipline matter arising out of formal charges fi led by the Office of Disciplinary Counsel ("ODC") against Jalila Eshe Bullock ("Respondent"), bar roll number The formal charges, which consist of one count, allege that Respondent violated Rules of Professional Conduct 1.3 (diligence), 1.4 (communication), 8.4(c) (dishonesty), and 8.4(a) (violation of the Rules). 2 At the hearing of this matter, Respondent stipulated to violating Rules 1.3, 1.4, and 8.4(c). The Hearing Committee assigned to this matter recommended that Respondent be suspended from the practice of law for one year and one day. The Board adopts the factual findings and legal conclusions of the Committee. As a sanction, the Board recommends that Respondent be suspended from the practice of law for one year and one day, with six months deferred. PROCEDURAL IDSTORY The formal charges were filed on August 26, The charges state, in pertinent part: I. The Respondent is a Louisiana licensed attorney born June 9, 1975 and admitted to the practice oflaw in the State of Louisiana on October 10, The Respondent has no prior disciplinary record, either public or private. 1 On September 9, 2015, Respondent was certified ineligible to practice law for failure to pay her bar dues and disciplinary assessment and for failing to complete the trust account overdraft authorization form. She remains ineligible. 2 The text of the Rules is contained in the attached Appendix.

2 II. The complainant, Geron Trenise Jones was the mother of a three year old baby girl who was struck and killed by a speeding motorcycle operated by Shawn Dejean. The tragic accident occurred July 4, 2011 and the subsequent police report reflected that the defendant was insured by Foremost Insurance Company at the time of the incident. ill. Following the death of her child, the complainant hired Respondent to represent her in a civil action against the defendant and his insurer, signing a contingency fee contract and providing Respondent with all pertinent information. IV. At some point during the course of the representation, the Respondent determined that the defendant motorcycle driver did not have a valid policy of insurance in effect on the date of this tragic accident and that the defendant driver was highly unlikely to be able to respond financially to any damage award entered against him. v. Respondent's communications during the first year of representation were sporadic. At no time during the year reckoning from the date of the accident did the Respondent disclose to her client that the defendant was not insured at the time of the accident, that she had filed no lawsuit to interrupt prescription, nor that she declined to pursue the matter further. VI. More than one year after the accident, the client was able to reestablish communications with the Respondent who misled her into believing that the civil action was still ongoing. VII. The Respondent then wire transferred her own funds to her client where Respondent explained that she was personally and temporarily advancing a portion of the settlement. VIII. After these events, the Respondent ignored the client's demands for her file; and left her in the dark regarding the pendency of the "litigation" that she was to have filed. IX. The actions of the Respondent reflects violations of Rule 1.3 (lack of diligence), Rule 1.4 (failure to communicate), Rule 8.4(c) (conduct involving dishonesty), and Rule 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), and warrant the imposition of discipline. 2

3 Respondent filed an answer to the charges on October 15, 2014, through her attorney, DaneS. Ciolino. In its prehearing memorandum filed on February 5, 2015, ODC argued that a one year and one day suspension, with six months deferred, was the appropriate sanction in this matter. In her prehearing memorandum filed on February 13, 2015, Respondent admitted to violating the Rules and argued that a one year suspension, fully deferred, was the appropriate sanction. This matter was heard on April24, 2015, by Hearing Committee #10 ("the Committee"). 3 Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC. Dane S. Ciolino appeared on behalf of Respondent. The Committee heard the testimony of Geron Trenise Jones (complainant) and Respondent. The Committee also received into evidence ODC Exhibits 1-3 and Respondent Exhibits 1-2. Respondent Exhibit 2 is a joint stipulation of facts in which Respondent stipulates to a majority of the factual allegations in the formal charges and admits to violating Rules 1.3, 1.4, and 8.4(c). The Committee issued its report on June 22, In addition to the joint stipulations, the Committee made the following findings and conclusions: At the hearing of this matter the testimony of the Complainant Geron Trenise Jones was offered. This testimony clearly showed that an attorney/client relationship was formed between Ms. Jones and Respondent concerning the wrongful death of Ms. Jones' daughter which occurred on July 4, To reflect the representation, a contract was signed between the parties a few days after the accident. This contract called for a contingency fee of 33 1/3%. A copy of this contract was never given to Ms. Jones. A short time after this contract was signed, Ms. Jones reached out to Respondent for information on her case and was told that the insurance company was giving her the "runaround" (Transcript 11.) Respondent said "they sent her a check, but the check was wrong, and she had to send it back to get another one reissued." (Transcript 12.) A few weeks later Respondent reiterated this story that there was a problem with the check and informed Ms. Jones "I'll just give you something out of my personal account" (Transcript 12) until the check comes. At this point 3 The Committee was composed of Bryan August Pfleeger (Chairman), Racquel B. Pettigrew (Lawyer Member), Shaughnesena Jefferson Seals (Public Member). 3

4 Respondent wired Ms. Jones $7, with the promise that another $7, would be wired at a later date because Respondent "felt sorry for her and I (sic) shouldn't have to go through this." Ms. Jones did not receive the second payment nor did she receive any documentation about the filing of a lawsuit in the matter. At this point Ms. Jones began asking repeatedly for a copy of her file or a copy of the lawsuit supposedly filed in this matter, neither were forthcoming. A copy of the file has never been given to Ms. Jones even as of the date of the hearing despite multiple requests for the same. Shortly after these events transpired Ms. Jones' stepfather went to the courthouse in attempt to secure a copy of the lawsuit. He found no evidence that any lawsuit in fact had been filed. After a complaint was filed with the Office of Disciplinary Council, Ms. Jones learned that no complaint had in fact been filed. This information was learned only from a response from Respondent's attorney. As a further result of ODC's investigation into this matter it was further learned that there was, in fact, no insurance check. There was in fact no liability insurance on the defendant driver who caused the death of Ms. Jones' child. It was at this time long after the filing of the original complaint that Ms. Jones was informed of the malpractice and was advised to contact another lawyer. Respondent also offered testimony in her defense. Respondent testified that she has been licensed to practice law in the State of Louisiana since Respondent characterized her experience in working with her sister as "a varied law practice. We did many different things plaintiffs work, business litigation. We did some bankruptcy. We did some family law. Varied practice." (Transcript 24). On the issue of communications Respondent testified "I was not as--i didn't communicate with her as well as I should have." (Transcript 27.) Respondent never communicated the fact that the defendant driver in this case did not have insurance nor did she file a lawsuit in a timely fashion. No full disclosure was made of this fact to Ms. Jones that the time had passed for the filing of any lawsuit. In addition, Respondent testified that the file was not handled well. No research was done as to other responsible parties or sources of recovery. Respondent testified that she felt bad about Ms. Jones situation and that nothing could be done. It was for this reason that she made the transfer of$7, Respondent testified [that] as of the hearing date she had still not turned over the file ostensibly for the reason that she believed that no one wanted it anymore (Transcript 33) or even worse that it would be inappropriate to do so. Perhaps, the most disturbing element of testimony by Respondent concerns the issue of the pending malpractice suit. Respondent seems to be alleging the issue of the one year malpractice prescription as a defense in effect benefitting from her own misconduct: Q: Have you raised the defense of prescription? A: I have. But please understand, it was never my intention. I didn't know I was going to be sued in that fashion. It was never my intention to just wait that out, and all of that. Because I'm not even sure if that's going to effect claims, going to 4

5 be a--if it's a viable claim. Because it's more than three years or if it was going to be successful rather. Let me say that. I think it's viable. I don't know if it's going to be successful at all. I have no idea. But it was never my intention to put her in a position where she couldn't see any type of recourse against me at all. Q: Today as we sit--i didn't mean to interrupt you. I'Ll let you fmish. Go ahead and fmish. I didn't mean to interrupt. Were you done? A: I'm done. Q: As of today, have you filed a pleading waiving prescription and allowing her a claim to proceed; have you done that? A;No. Q: In fact, what you've done is you plead prescription as a bar against her claim, haven't you? A: Well, I had to. I had to. (Transcript 53-54) [Hearing Committee Report, pp. 4-6] In this case there is no question that Respondent failed to act diligently in the Jones matter. There was no research into alternate sources of recovery, if any. There was no hunt for available witnesses. There was no mention of alternate theories of responsibility. Respondent failed to return the client's file when requested. Respondent failed to provide a copy of the contract evidencing the attorney client relationship. Respondent testified that the matter was not handled as it should have been and that she let the matter prescribe without the filing of a lawsuit. There is a very narrow margin between simple malpractice and an ethical violation. Had Respondent admitted the above facts to her client we would not be here today. Respondent chose not to admit to her failures but instead chose to do nothing at best and at worst to cover her mistakes with a series of actions that breached that narrow margin: She refused to return the client's file even as of the date of the hearing, she attempted to pay the client for her misconduct through a personal payment of $ without advising client of her negligence and without advising client to seek further counsel. Hearing Committee Report, p. 7. Based upon the foregoing, the Committee found that Respondent violated Rules 1.3, 1.4, 8.4( c), and 8.4(a). When considering the appropriate sanction, the Committee made the following findings and conclusions: The mental element of "knowing" was clearly present in this case. If there was no actual harm there was certainly the possibility of harm. The principal harm is to the profession rather than to the client. Harm is harm nevertheless. A member of a profession may not mislead a client; it is unacceptable and sets a bad precedent for other members of that profession. In this case the baseline sanction is suspens10n. 5

6 Hearing Committee Report, p. 7. The Committee recommended that Respondent be suspended from the practice of law for one year and one day with no period of deferral. ODC filed a notice of no objection to the Committee's report on June 30, 2015, and confirmed its agreement with the Committee's findings and sanction recommendation in its brief filed on July 8, Respondent filed her brief on July 13, 2015, in which she disagreed with the sanction recommended by the Committee. Respondent argues that analogous case law, the lack of financial harm to Ms. Jones, and the presence of several mitigating factors justify the deferral of the sanction in its entirety. Oral argument of this matter was initially scheduled for August 13, 2015, before Board Panel "C". However, due to the unforeseen substitution of a Panel member, oral argument was continued because of the substituting Panel member's need to recuse himself on this matter. Oral argument was heard by Board Panel "B", on November 5, Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC. Dane S. Ciolino appeared on behalf of Respondent. 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 fmdings 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 fmdings, if any, and recommendations." Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is 4 Board Panel "B" was composed of Edwin G. Preis, Jr. (Chairman), Walter D. White (Lawyer Member), and Evans C. Spiceland, Jr. (Public Member). 6

7 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 Respondent stipulated to a majority of the factual allegations in the formal charges. The Board must accept these stipulations. See In re Torry, (La. 10/19/10), 48 So.3d The additional factual findings of the Committee are supported by the record and do not appear to be manifestly erroneous. B. De Novo Review In addition to the factual allegations, Respondent stipulated to violating Rules 1.3, 1.4, and 8.4(c), which the Board must accept. See Torry, supra. Respondent did not stipulate to violating 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 1.3, 1.4, and 8.4(c), Respondent violated Rule 8.4(a). II. The Appropriate Sanction A. Rule XIX, lo(c) Factors Louisiana Supreme Court Rule XIX, 1 O(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; 5 In Ton y, the Court rejected the Board's conclusion that the Board was not required to accept the stipulations of the parties. The Court held that "effect must be given to [the stipulations of the parties] unless they are withdrawn." Torry at I

8 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, if not intentionally, violated duties owed to her client. With regard to the harm caused by Respondent's misconduct, the patties agree that there was little actual financial harm to Ms. Jones because the driver of the motorcycle was uninsured. Thus, there does appear to be little actual financial harm to Ms. Jones. However, there is other actual harm caused by Respondent's misconduct. Ms. Jones lost her right of action against the tortfeasor because Respondent allowed the matter to prescribe. Furthermore, Respondent's failure to timely notify Ms. Jones of Respondent's malpractice has potentially caused the malpractice claim to prescribe as well. As noted by the Committee, Respondent has pled prescription in the legal malpractice matter filed by Ms. Jones. See Hearing Committee Report, p. 6. Respondent's misconduct also had and has the potential to cause significant harm. If the tortfeasot was insured, allowing the matter to prescribe would have caused significant harm. Likewise, if the malpractice matter is dismissed as prescribed, Ms. Jones will lose her last opportunity for recovery for her loss. The parties stipulated to the following aggravating factors: vulnerability of the victim and substantial experience in the practice of law. 6 The Board also recognizes a dishonest or selfish motive as an aggravating factor. Respondent's failure to timely disclose the malpractice issue to Ms. Jones has potentially caused Ms. Jones to lose that right of action against Respondent. The parties stipulated to the following mitigating factors: absence of a prior disciplinary record, timely and good faith effort to make restitution or to rectify the consequences of her 6 Respondent was admitted to the practice of law in Louisiana on October 10,

9 misconduct, 7 full cooperation with the disciplinary proceeding, character and reputation, and remorse. B. The ABA Standards and Case Law As a preliminary matter, the Court's previous commentary on malpractice versus misconduct should be noted. In the past, the Court has stated that a single instance of malpractice does not necessarily rise to the level of sanctionable misconduct. The question of when ordinary legal malpractice becomes an ethical violation is somewhat unclear. Strictly speaking, virtually any time an attorney allows his client's case to prescribe or to become abandoned, it could be said the attorney lacks competence in violation of Rule 1.1 and failed to act with diligence in violation of Rule 1.3. However, as a practical matter, disciplinary sanctions are not always appropriate in every instance in which an attorney commits minor violations of the Rules of Professional Conduct. [Citation omitted.] When significant discipline has been imposed in this context, the cases typically involve situations in which the malpractice is combined with additional misconduct, such as where the attorney acts with deceit or misrepresents facts in an effort to conceal the malpractice from the client. [Citation omitted.] In re Brown, (La. 10/17/07), 967 So.2d 482, 486. The present matter does not involve a mere instance of malpractice. Respondent failed to pursue the matter with reasonable diligence, she failed to communicate important information to her client, and she misled her client regarding the status of the case. These actions constitute violations of the Rules of Professional conduct and warrant the imposition of a sanction. The ABA Standards for Imposing Lawyers Sanctions suggests suspension is the baseline sanction in this matter. 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, Respondent allowed Ms. Jones' matter to prescribe, knowingly failed to 7 While the presence of this mitigating factor is highly questionable under the facts of this matter, the Board is bound to accept the stipulation of the parties pursuant to Torry, supra. 9

10 communicate relevant information to Ms. Jones regarding her matter, and knowingly misled Ms. Jones regarding the status of the matter. This conduct, as discussed above, caused actual harm to Ms. Jones. Accordingly, suspension is the baseline sanction. In the past, 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 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, fully 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. 10

11 In In re Bruscato, the Court suspended Mr. Bruscato for sixty days for failing to file a clienfs personal injury lawsuit before the prescriptive deadline (La. 6/4/99), 743 So.2d 645. Without informing 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 (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), 2015 WL 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. 11

12 The following mitigating factors were present: full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. The facts of this matter fall on the higher end of the sanction range discussed above. First, Respondent acted knowingly, if not intentionally, when failing to infonn Ms. Jones about the prescription and about the tortfeasor's lack of insurance. Ms. Jones did not become aware of these issues until after she filed a complaint with ODC. Second, Respondent intentionally misled Ms. Jones regarding the status of the matter (i.e. stating there was an issue with the insurance company check). Third, Respondent's significant delay in notifying Ms. Jones of her malpractice has potentially caused Ms. Jones' right to pursue a legal malpractice action against Respondent to prescribe. Accordingly, the one year and one day suspension recommended by the Committee appears to be appropriate. The Board had difficulty in view of the facts of this case in finding an overwhelming reason for a downward departure, notwithstanding other cases. However, given the case law discussed above and the mitigating factors present in this matter, six months of the suspension should be deferred. CONCLUSION The Board adopts the factual findings and legal conclusions of the Committee. Likewise, the Board adopts the Committee's sanction recommendation of a one year and one day suspension. However, the Board recommends that six months of the suspension be deferred. The Board also recommends that Respondent be assessed with the costs and expenses of this proceeding. 12

13 RECOMMENDATION The Board recommends that Respondent. Jal ilneshc Bullock. be suspended li om the practice of law for one year and one day. with six months deferred. Any additional misconduct by Respondent during the deferred portion of the snnction may be grounds for making the deterred portion of the suspension executory. or imposing additional discipline. as appropriate. The Board also recommends that Respondent be nsscssed with the costs and expenses of this matter. LOUISIANA ATTORNEY DISCIPLINARY BOARD Cm J A. Butler George L. C nlin,.h. Anderson 0. Dotson, III Carrie L.. Jones Edwin G. Preis,.Jr. Dominici< Sc;mdurro,.Jr. R Lewis Smith,.Jr. Evans C. SJliceland,.Jr. BY:

14 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 l.o(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) 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)... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;... 14