LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JUAN CARLOS LABADIE DOCKET NO. 17-DB-002 INTRODUCTION PROCEDURAL HISTORY

Transcription

1 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JUAN CARLOS LABADIE DOCKET NO. 17-DB-002 REPORT OF HEARING COMMITTEE # 53 INTRODUCTION This attorney disciplinary matter arises out of formal charges consisting of three counts filed by the Office ofdisciplinary Counsel ("ODC") against Juan Carlos Labadie ("Respondent"), Louisiana Bar Roll Number ODC alleges that Respondent violated the following Rules of Professional Conduct: 1.3 (Diligence), 1.4(a & b) (Communication), 1.5(f)(5) (Fees), 8.2(a) (Judicial and Legal Officials), and 8.4(c & d) (Misconduct).2 PROCEDURAL HISTORY ODC filed formal charges on January 26, By letter dated January 30, 2017, the formal charges were mailed via certified mail to Respondent's primary registration address. 3 The mailing was delivered on February 1,2017. Respondent failed to file an answer to the charges. Accordingly, on March 7, 2017, ODC filed a motion to deem the factual allegations admitted pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3).4 By order signed March 24, 2017, the I Respondent's law license is interimly suspended. In re Labadie, 2016-B-0884 (La. 8/31/16). 2 See the attached Appendix for the text of these Rules. 3 Respondent's primary address is 300 Fairfield Avenue, Gretna, LA This rule states: The respondent shall file a written answer with the Board and serve a copy on disciplinary counsel within twenty (20) days after service of the formal charges, unless the time is extended by the chair ofthe 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 ofthe formal charges upon the respondent. The order signed by the hearing comm ittee chair shall be served upon respondent as provided by Section 1

2 factual allegations contained in the formal charges were deemed admitted. On May 24, 2017, ODC filed its submission on sanction. The Committee recommends that Respondent be disbarred. FORMAL CHARGES The formal charges read, in pertinent part: COUNT I Respondent in the instant matter is Mr. Juan C. Labadie, Louisiana Bar Roll # The Complainant as to Count I is Judge Michael P. Mentz, Division "F" 24ili Judicial District Court, Gretna, LA. The formal complaint was opened on September 29, Judge Mentz, before recusing himself, presided over Respondent's child custody and support suit that Respondent was engaged in with his former spouse. Judge Mentz was compelled to recuse himself from the matter because Respondent had qualified to run against him in the general election for the Division "F" bench. The basis of the formal complaint was statements that Respondent made to the news media (NOLA. com and the Advocate) during the election. Judge Mentz had, during the pendency of Respondent's family case, ordered that Respondent submit to a drug test, which Respondent had refused. Respondent spoke with the news n1edia and it was reported "there was no basis for his ex-wife's request that he be drug-tested, and he accused Mentz of altering the court transcript as it related to the deadline by which he was supposed to take the drug test." According to a news story on NOLA. com, Respondent made accusations against Complainant by "asserting that Mentz has doctored the public record, altering the transcript of an August 7 court hearing." According to the Advocate article, Respondent further con1n1ented, stating that he was running for judge against Mentz to "highlight that Mentz doesn't belong on the bench." Respondent said that "when faced with a situation where I have firsthand knowledge (of misconduct) and I know it happened, how can I turn my back on this and not do it?" Judge Mentz has publicly stated that he has never altered a transcript, and that he would have no reason to alter one. He said he is not involved in transcribing court proceedings and has never reviewed one before it was entered into the record. Respondent later made the same accusation of court transcript tampering against Judge Mentz during a formal ODC proceeding. He testified ofthe existence of a tape recording that established his claims that a transcript of a hearing in front of Judge Mentz had been altered. 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 miscaltiage ofjustice. 2

3 Respondent had n1ade a request to review this tape, but the request was denied. Respondent appealed the denial to the Fifth Circuit Court of Appeals, who then ordered Judge Donald A. Rowan to conduct an in camera inspection of the audio file of the August 7, 2014 hearing to ensure that the written transcript in the trial record accurately reflected the verbal orders of Judge Mentz, and for Judge Rowan to make a report to the Court. Judge Rowan's report and affidavit confirmed the accuracy of the transcript when it was compared with the audio recording. Respondent has been unable to produce any evidence to support the statements and allegations that he made to NOLA.com and the Advocate. The investigation into the matter by the Fifth Circuit concluded that Respondent's accusations against Judge Mentz were without merit. It is undisputed that slander and libel are not speech protected by the First Amendment. Respondent, by engaging in the above described behavior, has violated Louisiana Rules of Professional Conduct Rule 8.2(a) and Rule 8. 4 (c) (d). COUNT II The Complainant as to Count II is Tamara George. The formal complaint was opened on August 8, Complainant alleged that she filed a malpractice suit against Respondent which had settled in the form of a consent judgment dated October 5, Complainant said that since that time, Respondent has failed to pay the judgment pursuant to the written terms. The petition for damages alleged that Complainant was injured in a slip/fall accident at the Boomtown Casino ("Boomtown") gift shop, and that she had retained Respondent on or about March 4, 2004 to represent her in her claim of damages against Boomtown. Complainant alleged that she signed a contract with Respondent, but Respondent has never provided to her a copy of this contract. Complainant's claim against Boomtown prescribed on March 1, Complainant said that Respondent advised her in September of2004 that he had filed suit on her behalf. Complainant made several attempts to contact Respondent to discover the status of her suit but was not successful. Complainant, on February 19, 2007, contacted both Second Parish Court and the 24th Judicial District Court (both courts ofproper venue) in an effort to discover the status ofher suit, but was advised that neither venue had a record of her suit. Complainant scheduled an appointment with Respondent for February 27, 2007, wherein Respondent advised her that the case had been "lost." Respondent did not admit to Con1plainant that he never actually filed suit. Con1plainant's suit against Respondent for professional malpractice resulted. As previously noted, the malpractice suit settled. Under the terms of the agreement, Respondent was to pay Complainant a total of $22, in damages. Ofthat amount, $15, was to be paid no later than sixty days from September 21,2012. Another $4, was to be paid to Complainant no later than 120 days after September 21, Respondent was to pay $2, to various medical providers as well, also within 120 days ofseptember 21,2012. On information and belief, none of these funds have been paid to either Complainant or to the medical providers. 3

4 The sixth provision of the agreement barred Complainant from filing a formal complaint with the Louisiana Attorney Disciplinary Board and/or the Louisiana State Bar Association. This provision of the agreement was impermissible. Respondent, by engaging in the above described behavior, has violated Louisiana Rules of Professional Conduct Rule 1.3, Rule 1.4(a) (b), and Rule 8.4(c) (d). COUNT III The Complainant as to Count III is Cammie J. Templet. The formal complaint was opened on November 20,2015. Complainant said that she had hired Respondent to represent her in an appeal action involving an order of restitution in a criminal matter from which she had been cast into judgment. Complainant paid to Respondent $3, for this representation. The appeal record shows that Respondent filed a motion on December 10, 2013 in the Louisiana Fifth Circuit Court of appeal to stay enforcement of the restitution order. This motion was denied. Respondent then filed an appeal in the Fifth Circuit on January 15,2014, docket number 14-KA-42. Delay cutoffs were set by the Court at that tin1e. On March 13, 2014, Respondent was notified that his brief was overdue. The record reflects that Respondent filed a voluntary motion to dismiss the appeal on or about March 28, 2014 which was granted on March 31, Complainant regularly attempted to contact Respondent to discover the status of her appeal. Complainant attached to her complaint copies of electronic text messages that she exchanged with Respondent. On Noven1ber 25,2014, which was almost eight months after Respondent had dismissed Complainant's appeal, Complainant messaged Respondent requesting status of the appeal. Respondent failed to reveal to Complainant that he had already dismissed her appeal months prior. Complainant again messaged Respondent [on December 1, Respondent did not respond. Complainant messaged Respondent on December 4, Respondent replied that he would answer the message later that day. He failed to do so. Complainant again texted Respondent on December 9, 2014, but again, Respondent failed to advise Complainant that he had dismissed her appeal. Complainant and Respondent messaged back and forth on December 10, 11, and 17, On the 17th, Respondent told Complainant that he didn't "think that it's a good idea (the appeal) considering that your payments were lowered to what I believe would be lower than you would have even ifsuccessful in an appeal." Once again, Respondent failed to disclose to Complainant that he had long-since dismissed her appeal. Complainant requested a refund, but Respondent appeared to balk at the suggestion. Shortly afterward, Complainant contacted the Court to seek status of her appeal. The Clerk informed her that Respondent had voluntarily dismissed her appeal in March, Respondent stopped responding to Con1plainant's atten1pts ofcontact, and she never received from Respondent an accounting ofthe $3, fee she paid to hin1. Respondent, by engaging in the above listed behavior, has violated Louisiana Rules of Professional Conduct Rule 1.3, Rule 1.4(a) (b), Rule 1.5(f) (5) and Rule 8.4( c). 4

5 Respondent is currently on interim suspension for threat of harm by Order of the Louisiana Supreme Court. In re Juan Carlos Labadie (8/31116) 199 So.3d 607. Respondent was previously suspended from the practice of law, fully deferred, for a year and a day for trust account violations. In re Juan Carlos Labadie (6/24111) 65 So.3d 152. EVIDENCE AND FINDINGS OF FACT The factual allegations of the complaint are deen1ed admitted and thereby proven by clear and convincing evidence. The following facts constitute violations of the Louisiana Rules of Professional Conduct. In Complaint I, Respondent accused a sitting judge facing reelection of doctoring a public record by altering the transcript of a court hearing in which Respondent was a party. This accusation was made public in news stories carried in both local newspapers. Respondent offered no proof of his own and an examination of the hearing tape proved the accusation to be false. In Complaint II, Respondent lied to his client when he told her had filed her lawsuit when he had not. He then ignored further communications regarding the status of the matter. When confronted by the client after she found out on her own that no suit was filed, Respondent lied to her again when he said her case had been "lost." Respondent never admitted his failure to file suit. In Complaint III, Respondent accepted $3, to file an appeal. After missing the deadline to file his client's brief, Respondent voluntarily dismissed the appeal and did not tell his client. Despite multiple communications, Respondent failed to reveal to his client that he had dismissed her appeal. He later told the client the appeal was not a good idea, despite taking the engagement for just that purpose. After the client found out on her own that Respondent has dismissed her appeal, Respondent stopped responding to the client's communication attempts. Respondent failed to account for the $3, fee he accepted. 5

6 RULES VIOLATED Respondent violated Rule 1.3 (Diligence), first because he failed to file a lawsuit on time, and second, because he failed to timely file an appeal brief, instead moving voluntarily to dismiss the appeal. Respondent violated Rule 1.4 (Communication) because he failed to keep two clients reasonably informed about the status of their respective matters. He failed to inform one client of his failure to file her lawsuit, and another client that he had voluntarily dismissed her appeal. In each instance, the client discovered the status ofthe matter from the court, and only after numerous requests to the Respondent for that information. Respondent violated Rule 1.5 (Fees) because he failed to account for a fee he collected. Respondent violated Rule 8.2 (Judicial and Legal Officials) by making published statements with reckless disregard for their trust or falsity concerning the integrity ofa sitting judge facing reelection. Respondent violated Rule 8.4( c) (Misconduct) - engaging in conduct involving dishonesty, fraud, deceit or misrepresentation - by telling a client he had filed suit when he had not, and later telling her the suit had been lost when it had not even been filed. He violated Rule 8.4( d) - conduct prejudicial to the administration of justice - by recklessly n1aking public accusations that a sitting judge facing reelection doctored the public record of a proceeding in which Respondent was a party. SANCTION Louisiana Supreme Court Rule XIX, 1G(C), states that when imposing a sanction after a finding of lawyer misconduct, a committee shall consider the following factors: (l) 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 ofthe actual or potential injury caused by the lawyer's misconduct; and (4) The existence of any aggravating or mitigating factors. 6

7 In Count I, Respondent violated duties owed to the public, the legal system, and to the profession by making public unsupported accusations against a sitting judge facing reelection. Based on the complaint, the Respondent's statements to the n1edia were n1ade with reckless disregard for their truth or falsity concerning the integrity ofthe judge. This caused potential injury to the judge in his campaign for reelection. In Count II, Respondent violated a duty owed to his client by failing to file her lawsuit, then telling her it had been filed, and later telling her it had been lost. His statements to the client were intentional. The client suffered actual injury because Respondent never paid the amount owed to the Client in her malpractice judgn1ent against him. In Count III, Respondent violated a duty owed to his client by accepting an engagement to file an appeal, then voluntarily dismissing it after missing the deadline to file the client's brief and not telling her. He further violated a duty owed to the client by failing to account for the fee he had charged. Respondent's conduct caused potential harm to the client as her appeal may have been successful, and actual harm to her to the extent the fee he charged was unearned. A review of the ABA Standards for Imposing Lawyer Sanctions shows the following: 1. Suspension is the baseline sanction when a lawyer knowingly fails to perform services or engages in a pattern of neglect causing injury or potential injury. ABA Standard Suspension is the baseline sanction when a lawyer knowingly deceives a client, and causes injury or potential injury to the client. ABA Standard Suspension is the baseline sanction when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. 7

8 Aggravating factors are 1) prior disciplinary offenses, 2) dishonest or selfish motive, 3) pattern of misconduct, 4) multiple offenses, 5) substantial experience in the practice of law (admitted 1996), 6) indifference to making restitution, and 7) failure to respond in these proceedings. The only mitigating factor was the Respondent's personal and emotional problems. The Committee considered the following cases. In re Joyce Nanine McCool, (La. 6/30115), 172 So.3d 1058, the respondent was disbarred, in part, for conduct prejudicial to the administration ofjustice by orchestrating a social media campaign to discredit two judges. In re Willie Fred Smith, (La. 6/21102), 821 So.2d 1286, the respondent was disbarred, in part, for complete neglect of client matters. The ODC recommended suspension. Viewing the violations and the multiple aggravating factors together, however, the Committee recommends that the Respondent be disbarred. This opinion is unanimous and has been reviewed by the other committee members, who fully concur, and authorize the Committee Chair to sign on their behalf. Metairie, Louisiana, this 1 st day of September, Louisiana Attorney Disciplinary Board Hearing Committee #53 Beau P. Sagona, Committee Chair Louis Graham Arceneaux, Lawyer Member Jean E. Finch, Public Member Beau P. Sagona, Com For the Committee 8

9 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 ofthe 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 ofthe representation and the means by which they are to be pursued... Rule 1.5. Fees (a)... (b)... (c)... (d)... (e)... (t) 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 ofthe 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 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 8.2. Judicial and Legal Officials (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity ofa judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office... 9

10 Rule 8.4. Misconduct It is professional misconduct for a lawyer to: (a)... (b)... (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) Engage in conduct that is prejudicial to the administration ofjustice;... 10