ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE MICHAEL SEAN REID NUMBER 17-DB-006 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION

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1 ORIGINAL 17-DB-006 5/23/2018 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE MICHAEL SEAN REID NUMBER 17-DB-006 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This attorney disciplinary matter arises out of formal charges consisting of nine counts filed by the Office of Disciplinary Counsel ("ODC") against Michael Reid ("Respondent"), Louisiana Bar Roll Number The ODC alleged that Respondent violated the following Rules of Professional Conduct ( Rule(s) ): 1.3 (diligence), 1.4 (communication), 1.5(f)(5) (fees), 1.15(a) (safekeeping property), 1.16(d) (termination of representation), 8.1(c) (failure to cooperate with the ODC), 8.4(a) (misconduct), 8.4(c) (dishonesty, fraud, deceit or misrepresentation) and 8.4 (d) (conduct prejudicial to the administration of justice). 2 The factual allegations contained in the formal charges were deemed admitted pursuant to Louisiana Supreme Court Rules XIX, Sec. 11(E)(3). The hearing committee ( committee ) assigned to the matter concluded that Respondent violated the Rules and recommended that he be permanently disbarred. Further, it recommended that he make full restitution and that he be assessed all costs and expenses associated with the disciplinary proceedings. For the following reasons, the Board adopts the committee s findings of fact and conclusions of law. As to sanction, considering the circumstances in this case, the Board 1 Respondent was admitted on October 05, He was placed in interim suspension on December 09, In re Reid, (La. 12/09/16); 207 So.3d He is currently ineligible to practice law in Louisiana. His primary registration address is 321 W. Main St. Ste.2B, Lafayette, LA See attached Appendix for the full text of these Rules. 1

2 recommends that Respondent be disbarred. It further recommends that he make full restitution to his clients, and that he pay all costs and expenses associated with these disciplinary proceedings. PROCEDURAL HISTORY By way of background, during the ODC s investigation of trust account overdraft notices related to Respondent s trust account, Respondent admitted, in correspondence dated July 2, 2016, that he had not maintained client funds in the manner prescribed by the Rules of Professional Conduct, but further indicated that during the prior year, he had suffered with depression and anxiety, had sought professional psychiatric help, and had been hospitalized for stress and anxiety-related hypertension. 3 He requested the opportunity to voluntarily surrender his license until such time as he could obtain treatment and regain his ability to function within the legal field. The ODC wrote to Respondent indicating a willingness to work with Respondent and asking for additional information including medical records and a HIPPA release in order to communicate with JLAP. 4 Respondent signed the release on August 9, 2016, and the record indicates that he interacted with JLAP, but did not follow through with JLAP s recommended course of treatment. 5 In a separate proceeding, the ODC filed a Petition for Interim Suspension on August 31, The Court ordered that a hearing be held relative to that petition. Prior to that hearing, on October 22, 2016, Respondent sent an message to the hearing committee chair indicating that he was out of state, receiving treatment and temporary employment, and that he 3 ODC Exhibit 5. 4 ODC Exhibit 6. 5 ODC Exhibits 9 and 10. Correspondence from the JLAP Executive Director indicates that Respondent reported he was significantly distressed regarding the deterioration of his law practice, and that he was drinking and using Xanax daily to manage anxiety. Respondent was referred by JLAP to a detoxification facility. 6 ODC Exhibit 40. 2

3 would voluntarily surrender his license to save the time of a hearing. 7 Deputy Disciplinary Counsel immediately contacted Respondent to obtain additional information, however Respondent did not respond to the ODC s inquiry. 8 The interim suspension hearing was held on November 15, Respondent did not appear. The committee s report was issued on November 29, 2016, in which it recommended that Respondent be placed in interim suspension. 10 The Court placed Respondent on interim suspension on December 9, The formal charges i n t h e i n s t a n t m a t t e r were filed on February 21, By letter dated February 24, 2017, the formal charges were mailed via certified mail to Respondent's primary registration address. The certified mail was returned, undeliverable. The ODC requested that service be attempted at Respondent s other addresses. Respondent signed for the copy of the formal charges delivered to 903 Dulles Drive, Lafayette, Louisiana, 70506, on March 3, Respondent failed to answer. Accordingly, on March 30, 2017, the ODC filed a motion to deem the factual allegations admitted pursuant to Louisiana Supreme Court Rule XIX 11(E)(3). 12 By order signed April 13, 2017, the allegations contained in the formal charges were deemed admitted. 7 ODC Exhibit ODC Exhibit ODC Exhibit 41 (transcript of interim suspension hearing). 10 ODC Exhibit ODC Exhibit 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. 3

4 Hearing Committee # 22 issued its report based upon the facts as deemed admitted on August 15, On August 16, 2017, the ODC filed a notice of no objection to the committee s report. On October 4, 2017, the ODC filed its pre-argument brief. Respondent filed nothing for the Board s consideration. Oral argument was held on November 9, 2017, before Panel B. 14 Gregory L. Tweed appeared on behalf of the Office of Disciplinary Counsel. Respondent did not appear. FORMAL CHARGES The formal charges read, in pertinent part: The Respondent, Michael Sean Reid, is a forty-six-year-old Louisiana licensed attorney, born December 27, 1970, and admitted to the practice of law in Louisiana on October 5, 2001, after graduating from Loyola Law School. He has no prior disciplinary record; however, the Louisiana Supreme Court ordered that he be interimly suspended from the practice of law, for threat of harm, on December 9, Count I (ODC File No ) ODC received an overdraft notice from Hancock/Whitney bank related to your trust account on June 16, A second overdraft notice was received on July 2, A third overdraft notice was received on July 7, A fourth overdraft notice was received on July 28, Between ODC's receipt of the first and second overdraft notices, you provided a response addressing the first overdraft. You indicated you were battling depression, and wanted to surrender your license temporarily while dealing with those issues. In your response, you admitted you had not "maintained client funds in the manner prescribed by the rules of professional conduct." On July 13, 2016, ODC forwarded you a letter seeking additional information, which was mailed to you, certified mail, return receipt requested. The Post Office returned the letter as "unclaimed/unable to forward." Then on August 9, 2016, ODC had one of its staff investigators personally serve you with a copy of its July 13, 2016, correspondence, along with copies of additional overdraft notices. At that time, you also executed a HIPAA 13 Hearing Committee #22 was comprised of Thomas B. Thompson (Chair), Alan K. Breaud (Lawyer Member) and Elaine R. Dill (Public Member). 14 Panel A was comprised of Melissa L. Theriot (Chair), Pamela W. Carter (Lawyer Member) and Evans C. Spiceland (Public Member). Subsequent to oral argument, Ms. Theriot confirmed and disclosed that she had previously performed legal work for the construction company of one of the complainants and that she had been a friend of the complainant s parents. This disclosure was provided to the ODC and Respondent. No recusal motions were filed. Moreover, there appears to have been no basis upon which recusal is warranted. 4

5 release, allowing ODC to communicate directly with the Judges and Lawyers Assistance Program ("JLAP"). As of the date of this submission, you have not responded to ODC's requests for additional information, nor have you provided an explanation for the three additional overdrafts. On August 24, 2016, ODC received a letter from Buddy Stockwell, the Executive Director of JLAP, advising that you had contacted their office on July 11, 2016, and reported your drug and alcohol abuse, as well as your stress and anxiety. JLAP referred you to a detox facility and recommended a multi-day assessment. Mr. Stockwell states his office has not heard anything further since your initial telephone conversation. Your intentional conduct has violated Rules 1.15(a), 8.1(c), 8.4(a) and 8.4(c). Count 2 (ODC File No ) Dawn Meehan, a former client, received a refund check drawn on your trust account; however, when she attempted to negotiate the check, it was dishonored due to insufficient funds. Notice of this complaint was mailed to you on September 1, 2016, certified mail, return receipt requested. Per a search of the Post Office s website on October 25, 2016, the notice of this complaint has still not been accepted. However, you were provided a copy of ODC s Petition for Interim Suspension for Threat of Harm Pursuant to Rule XIX, 19.2, which contained Ms. Meehan s complaint. As of this date, you have failed to provide a response to the issues raised by Ms. Meehan. Your intentional conduct has violated Rules 1.3, 1.4, 1.15(a), 8.1(c) and 8.4(c). Count 3 (ODC File No ) Daniel E. Pefferkorn hired you in September of 2015, to represent him in a divorce and community property matter. Mr. Pefferkorn paid a $3,500 deposit. You have intentionally ceased all communication with Mr. Pefferkorn. You have intentionally abandoned your law practice and refuse to return your client s calls. Due to your multiple address changes, a title to a vehicle Mr. Pefferkorn owns was lost in the mail system, and he had to pay an additional $85 to order a duplicate copy. Mr. Pefferkorn, last spoke with you on August 17, Mr. Pefferkorn sent correspondence via certified mail to you on August 31, 2016, terminating your services and requesting a copy of his file and the remainder of the retainer. You have ignored this request. Based upon the invoice you provided to Mr. Pefferkorn s, his retainer balance on January 4, 2016, was $ The bank statements you provided related to your overdrafts, which include the period from January 1, 2016 May 31, 2016, confirm your trust account dropped below the required amount on numerous occasions, providing clear and convincing evidence of the intentional conversion of client funds. You have intentionally abandoned your law practice, without providing 5

6 any notice to your client. In doing so, you failed to alert the Court, failed to provide Mr. Pefferkorn with his file or other documents, and have failed to refund the unearned fees, which has hindered Mr. Pefferkorn s ability to retain new counsel to pursue his interests. Notice of this complaint was mailed to you on September 27, 2016, certified mail, return receipt requested. You signed the return receipt on October 3, As of this date, you have not provided any response to the issues raised in the complaint. Your intentional conduct has violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c) and 8.4(c). Count 4 (ODC File No ) Blake and Tiffany Savoie hired you in May of 2016, to assist in issues related to custody modification and child support. Mr. & Mrs. Savoie paid a $125 consultation fee. On your advice, Mr. & Mrs. Savoie first filed for child support. Mr. & Mrs. Savoie agreed to a $1,500 advanced deposit, which was paid to you in June of You failed to file the petition to request child support with the court. You have intentionally refused to return the clients calls and have abandoned your law office. You have ceased communicating with Mr. & Mrs. Savoie, and they have been unable to locate you. Notice of this complaint was mailed to you on September 29, 2016, certified mail, return receipt requested. You signed the return receipt on October 3, As of this date, you have failed to provide a response to the issues raised in the complaint. Your intentional conduct has violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c) and 8.4(c). Count 5 (ODC File No ) Bridget B. Tilley hired you in April of 2016 to handle a child support/custody matter. Ms. Tilley paid a $3,500 retainer fee on April 20, 2016, and another $3,500 on May 16, You made one court appearance for Ms. Tilley but, thereafter, you failed to appear for the Hearing Officer Conference. You intentionally stopped returning Ms. Tilley s calls and s, and were difficult to reach by phone after the Rule docket. Subsequent efforts to contact you were unsuccessful, as your phone was disconnected. Ms. Tilley has been unable to communicate with you for several months. You failed to file orders requested by the court, and Ms. Tilley was forced to do all her own work, including preparing the documents for the Hearing Officer Conference. 6

7 Notice of this complaint was mailed to you on September 29, 2016, certified mail, return receipt requested. You signed the return receipt on October 3, As of this date, you have not provided any response to the issues raised in the complaint. Your intentional conduct has violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c) and 8.4(c). Count 6 (ODC File No ) Hayley J. Simmons hired you in September of 2015, to represent her in divorce, community property, child support and custody matters. Ms. Simmons paid a $250 consultation fee and a $3,500 advanced deposit to you for the representation. A Petition for Divorce was filed on behalf of Ms. Simmons on September 15, On August 16, 2016, approximately one month before Ms. Simmons reached the required one year living separate and apart, she ed your secretary for instructions and inquired about any scheduled court dates. After not receiving a response, Ms. Simmons called your office and learned that the phone had been disconnected. Your office is now vacant. Ms. Simmons eventually obtained your cell phone number, but you have intentionally refused to answer any of her calls. Based upon the invoice you provided to Ms. Simmons, her retainer balance on February 15, 2016 was $1, The records further confirm an April 30, 2016, retainer balance of $1, The bank statements you provided related to your overdrafts confirm your trust account dropped below the necessary amounts on numerous occasions, providing clear and convincing evidence of intentional conversion of client funds. Notice of this complaint was mailed to you on October 11, 2016, certified mail, return receipt requested. You signed the return receipt on October 13, As of the date of the filing of these charges, you have not provided a response in this matter. Your intentional conduct has violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c) and 8.4(c). Count 7 (ODC File No ) Michael B. O Niell hired you to represent him in a divorce matter. Mr. O Niell last met with you on July 13, 2016, to review for the upcoming Hearing Officer Conference ( HOC ). The HOC was postponed by opposing counsel. You ed Mr. O Neill and informed him that the HOC had been continued and you would let him know when it was rescheduled. Mr. O Niell has not heard from you since the informing him of the continued HOC. Mr. O Niell called the Hearing Officer s office and learned that the HOC had been rescheduled for September 30, The Complainant was forced to retain new counsel. 7

8 Notice of this complaint was mailed to you on October 11, 2016, certified mail, return receipt requested. You signed the return receipt on October 13, 2016, however you have failed to provide a response. Your intentional conduct has violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c) and 8.4(c). Count 8 (ODC File No ) Shay B. Lambright hired you in April of 2016 to represent him in a child support case. Mr. Lambright paid a $3,500 advanced deposit and a $250 consultation fee on April 26, 2016, and signed a contract stating he agreed to be charged at a rate of $250/hour. You sent a letter of representation to opposing counsel, Lloyd Hennigan, Jr. on April 27, 2016, informing him that you had a previously scheduled hearing on the scheduled court date of June 2, 2016, and needed to file a continuance. Mr. Lambright s wife sent several s to you on April 29, 2016, containing documents needed for the case. Mr. Lambright received an from your assistant on May 24, 2016, informing him that the new court date was set for July 18, 2016, and that discovery responses were due on July 11, Mr. Lambright met with you at your office on July 13, 2016, to discuss the case strategy. During this meeting, you informed Mr. Lambright about certain medical issues you allegedly were experiencing. Mr. Lambright agreed to a continuance, should your health issues escalate. On Friday, July 15, 2016, Mr. Lambright sent you a text message to confirm the court date on Monday, July 18, When no response was received, Mr. Lambright called and left a voic . In response, you stated that you were in the hospital, and would try and call the court to request a continuance and would get back with Mr. Lambright. Mr. Lambright informed you that he still planned on being at the court on July 18, 2016, and asked you about providing a doctor s note to give to the court. However, you intentionally failed to respond and did not appear in court. Opposing counsel advised that since he did not receive any documentation from you regarding a continuance, he was prepared to file a contempt motion. Mr. Lambright then spoke with Judge Andrews, who stated that since you did not contact the court requesting a continuance, Mr. Lambright had ten days to provide the discovery responses. Mr. Lambright mailed you correspondence terminating your services on July 24, 2016; however, you have failed to acknowledge receipt of this correspondence or return the balance of his advance deposit. Based upon the invoice you provided to Mr. Lambright, his retainer balance on June 13, 2016 was $3, The records further confirm an April 28, 2016, retainer deposit of $3, The bank statements you provided regarding your trust account overdrafts, confirm your trust account dropped below the required amount on numerous occasions, providing clear and convincing evidence of intentional conversion of client funds. 8

9 Notice of this complaint was mailed to you on October 12, 2016, certified mail, return receipt requested. You signed the return receipt on October 17, As of the date of the filing of these charges, you have not provided any response to the issues raised in the complaint. Your intentional conduct has violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c) and 8.4(c). Count 9 (ODC File No ) Lauren Choate hired you in April of 2016, to handle a custody and community property matter. Ms. Choate paid a $2,250 advance deposit on April 11, 2016, for the community property matter. Ms. Choate began having issues with her ex-husband regarding custody and contacted you to represent her for a custody case, in addition to the community property case. Ms. Choate paid you an additional $1,500 advance deposit on April 18, 2016, for the custody matter; however, you have not communicated with her or done anything about her cases. Notice of this complaint was mailed to you on October 17, 2016, certified mail, return receipt requested. You signed the return receipt on October 19, As of the date of the filing of these charges, you have not provided any response to the issues raised in the complaint. Your intentional conduct has violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c) and 8.4(c). There is clear and convincing evidence of your intentional violation of Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c), 8.4(a), 8.4(c) and 8.4(d) of the Rules of Professional Conduct. HEARING COMMITTEE REPORT Based upon the facts as admitted, the committee found Respondent violated Rules of Professional Conduct 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c), 8.4(a), 8.4(c) and 8.4(d). In summary, it found that Respondent failed to act with diligence and promptness in representing his clients, failed to effectively communicate with his clients, abandoned his practice without notice to his clients, failed to hold his clients funds in trust, failed to refund unearned fees, intentionally engaged in conduct involving dishonesty, fraud, deceit or misrepresentation by converting the funds of his clients to his own use, failed to properly withdraw from his clients cases and intentionally failed to cooperate with the ODC in the investigation of the matters. 9

10 As to sanction, the committee found Respondent violated obligations to his clients, the public, the legal system and the profession and that his conduct was intentional. It further found that he caused damage to his clients by abandoning their legal matters, depriving them of their funds, and hampering their ability to retain new counsel. As aggravating factors, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of his misconduct, vulnerability of the victims, substantial expertise in the practice of law, and indifference to making restitution. It found no mitigating factors, noting that Respondent had failed to offer medical evidence to support a finding of mental impairment. Given the admitted misconduct and the numerous violations of the Rules of Professional Conduct, the committee recommended that Respondent be permanently disbarred. I t f u r t h e r recommended that h e be ordered to provide full restitution to his former clients and the Louisiana State Bar Association Client Assistance Fund for any claims that it might pay to the former clients of Respondent. It also recommended that he be charged with all costs and expenses of these disciplinary proceeding. 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 10

11 that of manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee s application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). A. The Manifest Error Inquiry The factual allegations in the formal charges have been deemed admitted and proven pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). A review of the record reveals that the factual findings of the committee are supported by the allegations asserted in the formal charges and/or by the evidence submitted in support of the allegations. B. De Novo Review Although the factual allegations in the formal charges have been deemed admitted and proven, the language of Louisiana Supreme Court Rule XIX, 11(E)(3) does not encompass the legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. See, In re Donnan, (La. 1/10/2003); 838 So.2d 715. The facts as alleged and supporting documentation support the committee s conclusions that Respondent violated Rules 1.3, 1.4, 1.5(f)(5), 1.15(a), 1.16(d), 8.1(c), 8.4(a), 8.4(c) and 8.4(d). The Board adopts the committee s legal conclusions as to these Rule violations. 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: 11

12 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. The Court also considers the ABA Standards for Imposing Lawyer Sanctions in determining the baseline sanction. In re Quaid, (La. 11/30/94); 646 So.2d 343, 350. Here, Respondent intentionally violated duties owed to his clients, the public, the legal system and as a professional, causing actual harm to his clients by abandoning their legal matters and retaining advanced deposits for fees. He harmed the legal system by failing to advance his client s cases. He misused his client trust account, writing checks to cash and to pay personal debts, and overdrawing the account. Though he initially participated in the ODC s investigation, he thereafter he failed to participate in the proceedings, violating duties owed as a professional. Respondent s conduct is the type that not only damages his clients but also erodes the public s confidence in lawyers and the legal system. The aggravating factors found by the committee are numerous and are adopted by the Board. The sole mitigating factor is the lack of prior discipline. While this mitigating factor does not outweigh the aggravating factors, it is significant in the Board s consideration of the sanction to be imposed. B. The ABA Standards and Case Law There is no doubt that disbarment is the appropriate baseline sanction in this matter. 15 In 15 The following ABA Standards are applicable: 4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client Disbarment is generally appropriate when: (a) a lawyer abandons the practice and client; or (b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or (c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client Disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potential serious injury to a client. 12

13 abandoning the legal matters of multiple clients, Respondent engaged in serious misconduct. Moreover, he has caused actual monetary harm by failing to refund advanced fees to several clients. 16 While the ODC has argued that permanent disbarment is appropriate in this instance, citing Guideline 1 of the Guidelines Depicting Conduct Which Might Warrant Permanent Disbarment (repeated or multiple instances of intentional conversion of client funds with substantial harm), considering the individual circumstances in this case, the Board recommends that Respondent be disbarred rather than permanently disbarred. La. Sup. Ct. Rule XIX, Appendix E illustrates the type of conduct which might warrant permanent disbarment. The Guidelines are not intended to bind the Court in its decision-making. The Board is convinced, after reviewing the entire record, which includes reference to Respondent s history of practice for nearly fifteen years without prior discipline, the relatively brief period of time during which the misconduct occurred, and Respondent s assertion that he was facing depression, anxiety and related physical impairments at the time of his misconduct, that Respondent should be disbarred, but should not be permanently prohibited from seeking readmission Disbarment is generally appropriate when... (b) a lawyer engages in any... intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer s fitness to practice. 7.1 Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system. 16 The record shows he may owe refunds in excess of $20,000 to his clients. Respondent owes Ms. Meehan (Count 2) $1,130 ($1,125 fee refund + $5 returned item fee). He owes Mr. Pefferkorn (Count 3) a refund of $2, The Savoies (Count 4) gave Respondent a $1,500 advanced deposit for fees. It appears he performed some work on their legal matter. ODC Exhibit 41, p. 49. The amount owed as a refund is not certain. Ms. Tilly (Count 5) paid Respondent $7,000. Respondent performed some work on her legal matter. ODC Exhibit 41, p. 33. The amount owed as a refund is not certain. Ms. Simmons (Count 6) is owed a refund of $1, Fees paid to Respondent by Mr. O Neill (Count 7) is not certain. Mr. Lambright (Count 8) is owed $ ODC Exhibit 31. Ms. Choate (Count 9) paid Respondent $3,750. The charges allege Respondent did nothing about her cases. 13

14 Respondent was admitted to practice on October 5, 2001, and had been in practice for nearly fifteen years at the time of the misconduct. He has no history of prior discipline. Considering the client complaints, it appears that Respondent s practice was comprised largely of handling divorce and child support matters. Documentation supplied with the client complaints, as well as the testimony elicited at the interim suspension hearing, show what appears to have been a competently and efficiently-run law practice prior to the time that the instant misconduct commenced. 17 Many complainants testified that they had been referred to Respondent by other lawyers or friends who had been satisfied with his representation. 18 The evidence shows that the misconduct forming the basis of these proceedings occurred during a time period that was relatively short in duration. The first overdraft of Respondent s client trust account occurred on May 31, Thereafter, additional overdrafts were reported in June and July of Respondent communicated with the ODC and JLAP in July and August of Shortly thereafter, beginning in late August, client complaints related to Respondent s failure to communicate with them and failure to refund their fees followed. The last complaint included as part of these proceedings was received in October of While Respondent did not participate in either the interim suspension or formal charge proceedings, there is evidence in the record to substantiate his initial assertion to the ODC that he was suffering from depression, anxiety and hypertension. The testimony of the JLAP Executive Director at the November 15, 2016 interim suspension hearing established that the Executive and Clinical Directors of that agency were concerned over Respondent s mental health See, for example, pleadings, billing statements, and other communications by Respondent to his clients in ODC Exhibits 19 and 25, as well as testimony of his clients at the interim suspension hearing, ODC Exhibit ODC Exhibit 41, pp. 31, 47, 59, 70, ODC Exhibit Mr. Stockwell testified that at a minimum, Respondent would have suffered a mild substance use disorder requiring outpatient treatment, and may have been chemically dependent or suffered a moderate to severe substance use disorder requiring inpatient treatment. In any case, JLAP had concerns relative to Respondent s mixing of 14

15 Furthermore, several of the complainants testified at the interim suspension hearing that Respondent had made them aware that he had suffered with medical issues during the representation and that he had been hospitalized. 21 Two complainants mentioned in their complaints that Respondent had told them of his medical issues. 22 If, indeed, the misconduct in this matter derives from a mental and or physical disability, there may be a time in the future that Respondent will be able to establish that he has been rehabilitated and should be readmitted. The Board does not believe it is appropriate to foreclose that possibility at this time, particularly considering case law which indicates that when a lawyer is suffering from chemical dependency or a mental disability, this mitigating factor should be afforded some weight. 23 Although the record lacks clear medical evidence, the questions raised as to Respondent s mental and physical health convinces the Board that Respondent should not be permanently disbarred. While the misconduct at issue is serious, the Board finds that the imposition of disbarment, rather than permanent disbarment adequately protects the public, and does not unduly punish the Respondent. 24 alcohol and Xanax and recommended proper detoxification under medical supervision. ODC Exhibit 41, pp ODC Exhibit 41, pp.49-51, 63, ODC Exhibits 31, According to the jurisprudence, the greatest weight should be assigned when the disability is the sole cause of the misconduct, very great weight should be given if it is a principal cause, great weight should be given if it is a substantial contributing cause, and little weight should be given in any other circumstances. In re Stoller, (La. 5/24/05); 902 So.2d 981, 988. See also, ABA Standard If clear and convincing evidence established this disability as a mitigating factor, it may have warranted a downward deviation from the baseline sanction of disbarment. 24 The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. In re Vaughan, (La. 10/27/00); 772 So. 2d 87; In re Lain, (La. 5/26/00); 760 So. 2d 1152; Louisiana State Bar Ass n v. Levy, 400 So. 2d 1355 (La. 1981). 15

16 There is jurisprudential support for imposing discipline that is less severe than permanent disbarment in instances that would otherwise fit under Guideline 1 of the Permanent Disbarment Guidelines. In In re Phillips, (06/13/14); 156 So3d 113, the Court affirmed the Board s recommendation of disbarment in the case of an attorney who had engaged in significant misconduct including repeatedly accepting fees from clients, doing little to no work on their legal matters and failing to refund any fees. Even though the conduct clearly fit Guideline 1, disbarment, rather than permanent disbarment, was imposed. Mr. Phillips had filed correspondence with the Board indicating that his misconduct was unintentional and resulted from his mental and physical health problems. In addition, at his request, the ODC obtained a copy of his medical records, which were available for review under seal by the Board. The Court imposed disbarment and ordered that Mr. Phillips make restitution to his victims and repay the L.S.B.A. s Client Assistance Fund, as appropriate. Similarly, in In re Boyer, (La. 1/22/2010); 26 So.3d 139, the Court imposed disbarment, rather than permanent disbarment. In that case, there was no suggestion of a mental or physical impairment, yet disbarment was still found to be the appropriate sanction. In that case, the deemed admitted facts established that Mr. Boyer had neglected the legal matters of several clients, failed to refund unearned fees to five clients, wrote an NSF check to one client in the amount of $10, and failed to cooperate with the ODC in its investigation of the disciplinary matter. The Court determined that the baseline sanction was disbarment for the multiple rule violations. It found that Mr. Boyer had essentially abandoned his law practice, causing serious actual and potential harm to his clients. Numerous aggravating factors applied including a dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings by intentionally failing to cooperate with the rules or orders of the disciplinary agency, vulnerability of the victims and substantial experience in the 16

17 practice of law. The sole mitigating factor was Mr. Boyer s lack of a prior disciplinary record. The Court imposed disbarment, despite the Board s recommendation of permanent disbarment. In addition, the Court ordered Mr. Boyer to render a full accounting to his clients and make complete restitution to them. Under the circumstances in this case, the Board declines to recommend permanent disbarment; rather, it recommends that Respondent be disbarred, and that he make restitution, as appropriate. It further recommends that he be charged with all costs and expenses associated with these disciplinary proceedings. CONCLUSION Considering the foregoing, the Board adopts the committee s findings of fact and conclusions of law. As to sanction, the Board recommends that Respondent be disbarred and that he provide accountings and make restitution to his clients and/or the Louisiana State Bar Association Client Assistance Fund, as appropriate. It further recommends that he be charged with all costs and expenses of these disciplinary proceeding. RECOMMENDATION The Board recommends that Michael Sean Reid be disbarred. It further recommends that he provide accountings and make restitution to his clients Ms. Dawn Meehan, Mr. Daniel Pefferkorn, Mr. and Mrs. Blake Savoie, Ms. Bridget B. Tilley, Ms. Hayley J. Simmons, Mr. Michael B. O Niell, Mr. Shay Barnette Lambright, and Ms. Lauren Michelle East Choate and/or 17

18 the Louisiana State Bar Association Client Assistance Fund, as appropriate. It further recommends that he be assessed with all costs and expenses of these proceedings in accordance with Rule XIX, Section 10.1(A). LOUISIANA ATTORNEY DISCIPLINARY BOARD Brian D. Landry Sheila E. O Leary Dominick Scandurro Danna E. Schwab Evans C. Spiceland, Jr. Melissa L. Theriot Charles H. Williamson, Jr. BY: Pamela W. Carter FOR THE ADJUDICATIVE COMMITTEE Linda G. Bizzarro Dissents with reason. 18

19 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: MICHAEL SEAN REID DOCKET NO. 17-DB-006 DISSENT The evidence clearly established in the Meehan, Pefferkorn, Savoie, Tilley, Simmons, O'Nieil, Lambright and Choate matters, the Respondent engaged in multiple instances of intentional conversion of client funds which implicates Guideline 1 under which permanent disbarment may be warranted. Considering Respondent offered no medical evidence regarding any mental or physical disability during these proceedings, I concur with the recommendation of the Hearing Committee for permanent disbarment. LOUISIANA ATTORNEY DISCIPLINARY BOARD By: Linda G. Bizzarro Adjudicative Committee Member

20 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 wi t h 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 thecourse 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 (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. * * * (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 19

21 client, either during the course of the representation or at the termination of the representation, t h e lawyer shall immediately r e f u n d 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 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: * * * (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation... (d) Engage in conduct that is prejudicial to the administration of justice. 20