ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JANINNE LATRELL GILBERT NUMBER: 15-DB-002 RECOMMENDATION TO THE LOUISIANA SUPREME COURT

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JANINNE LATRELL GILBERT NUMBER: 15-DB-002 RECOMMENDATION TO THE LOUISIANA SUPREME COURT Louisiamt \llorm~' Disci 1linan Board FILED by:~-~ Docket# Filed-On 15-DB-002 1/8/2016 INTRODUCTION This is an attorney discipline matter arising out of formal charges filed by the Office of Discip]inary Counsel ("ODC") against Janinne Latrell Gilbert ("Respondent"), bar roll number The charges, which consist of three counts, allege that Respondent violated the following Rules of Professional Conduct: 1.3 (d iligence)~ 1.4(a) (communication); 1.5(a) (reasonable fee); L5(f)(5) (return of unearned fee; disputed funds in trust account); 1.15(d) (prompt notice of receipt of third party funds, prompt delivery of client funds); 1.15(e) (prompt distribution of third party funds; holding disputed funds separate); 1.16( a)(3) (withdrawal upon discharge); 1.16(d) (obligations upon termination); 8.1(b) (failure to respond); 8.1(c) (failure to cooperate); 8.4(a) (violate or attempt to violate Rules of Professional Conduct); and 8.4(c) (dishonest conduct)? Respondent allowed the charges to become and remain deemed admitted pursuant to Louisiana Supreme Court Rules XIX, l l(e)(3). 3 The Hearing Committee assigned 1 Respondent is cunently eligible to practice law. 2 The text of the Rules is contained in the attached Appendix. 3 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 with.illi 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 th'e hearing committee chair deeming the factual allegations contained in the formal charges proven, the

2 to this matter concluded that Respondent violated a majority of the Rules alleged in the fmmal charges and recommended that Respondent be disbarred. The Board adopts the Committee's factual findings, legal conclusions, and recommendation. Accordingly, the Board recommends that Respondent be disbarred. PROCEDURAL HISTORY ODC filed the formal charges on February 9, The charges read, in pertinent part: COUNT I (ODC ) On October 12, 2012, the Office of Disciplinary Counsel received a complaint from Patrice J. Warren, and the matter was opened as investigative file number ODC On November 1, 2012, ODC forwarded a copy of the complaint and a request for a response via certified mail to Respondent at her primary address registered with the Louisiana State Bar Association. See Louisiana Supreme Cowt Rule XIX, 8C. The certified mail was received and signed for by Respondent on November 20, 2012, and her initial response was received by ODC on December 10,2012. Ms. Warren retained Respondent on or about January 24, 2012, to represent her interests in her mother's succession proceeding. The agreement was reduced to writing and sets forth that legal services would begin after payment of the "flat fee" of $1, for representation "in connection with the... Succession." Ms. Warren signed the agreement on January 24, 2012, and Respondent signed the agreement on February 1, Ms. Warren paid the $1,500 fee via check number 2727, which cleared on February 2, On February 9, 2012, Respondent ed Ms. Warren: "I will contact you as soon as I have completed the succession documents." After this , Ms. Warren's numerous attempts at communication (telephone, , letters) with Respondent were unsuccessful. On June 18, 2012, Ms. Warren's husband, John F. Warren, wrote Respondent inquiring about the status of the matter and requesting a refund of the fee paid. Respondent did not respond. Due to the lack of communication and the lack of progress on the succession, on August 21, 2012, termination letters were sent by Ms. Warren to Respondent via certified mail to her home address and to her office address. The letter sent to Respondent's home address was returned "unclaimed." The letter sent to Respondent's office address was received and signed for on August 24, Despite having completed little to none of the agreed-to work, Respondent returned none of the fee paid, intentionally converting client funds. 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. 2

3 With her initial response, Respondent forwarded an October 1, 2012, certified letter mailed to Ms. Warren that had been returned to Respondent. Respondent stated that she had prepared the necessary documents and was awaiting Ms. Wanen's approval so that the documents could be executed and filed. However, at the time this letter was sent, Respondent already had been notified that her representation had been terminated, and Ms. Warren had retained the services of another attorney to handle the succession. On January 8, 2013, ODC wrote Respondent seeking a supplemental response in which Respondent could explain why she had not returned any of the fee paid and why she continued work on Ms. Warren's behalf after Ms. Warren had terminated the representation. Receiving no response, on February 1, 2013, a second request was sent by ODC to Respondent. On November 18, 2013, ODC again wrote Respondent requesting a supplemental response; this correspondence was sent via certified mail. The certified mail was delivered on November 22, 2013; however, no supplemental response was received by ODC. On March 27, 2014, ODC again wrote Respondent requesting information; the letter was mailed to Respondent's preferred address. Never receiving the supplemental response, on July 2, 2014, ODC Investigator Jeremy Norwood personally served Respondent with a subpoena to appear for a sworn statement on July 15, On July 14, 2014, Respondent sent a facsimile to ODC, advising that she would not be present for the sworn statement due to a medical matter. Respondent's refusal to provide a supplemental response and refusal to comply with a subpoena to appear for a sworn statement establish a knowing, if not intentional, failure to respond to and failure to cooperate with ODC. Respondent's conduct in ODC is in violation of Rules 1.3 (diligence); 1.4(a) (communication); 1.5(a) (reasonable fee); 1.5(f)(5) (return 9f unearned fee; disputed funds in trust account); 1.15(d) (prompt delivery of client funds); 1.16( a)(3) (withdrawal upon discharge); 1.16( d) (obligations upon termination); 8.l(b) (failure to respond); 8.1(c) (failure to cooperate); 8.4(a) (violate or attempt to violate Rules of Professional Conduct); and 8.4(c) (dishonest conduct). COUNT II (ODC ) On November 1, 2012, the Office of Disciplinary Counsel received a complaint from Carol Joseph, and the matter was opened as investigative file number ODC On November 12, 2012, ODC forwarded to Respondent a copy of the complaint and a request for a response via c~rtified mail to her primary address registered with the Louisiana State Bar Association. See La. S. Ct. Rules, Rule XIX, 8C. The certified mail was received and signed for by Respondent on November 28, 2012, and her initial response was received on December 14, Ms. Joseph retained Respondent for the fixed fee of $3,850 to represent the interests of Ms. Joseph in four Louisiana successions and one act of donation. The agreement was reduced to writing and signed by Ms. Joseph and Respondent on November 10, Ms. Joseph paid Respondent $3,850 by cashier's check number on November 12,

4 It took Respondent approximately one and one-half years and several attempts to obtain a death certificate for Harriet Johnson. During this time period, Ms. Joseph repeatedly attempted contact with Respondent, asking how much longer it would be before the legal matters were complete. Respondent's first attempt at obtaining the death certificate was rejected due to the failure to pay the correct fee, as reflected in an April 26, 2011, letter from the Louisiana Department of Health and Hospitals. On June 6, 2011, Respondent ed Ms. Joseph advising that she had encountered complications with procuring the death certificate. On July 20, 2011, Respondent again advised Ms. Joseph that [she] did not have the death certificate. On July 22, 2011, Respondent wrote DHH making another attempt to obtain Harriet Johnson's death certificate. In response to repeated inquiries from Ms. Joseph, on February 2, 2012, Respondent wrote Ms. Joseph advising that she did not have Harriet Johnson's death certificate. On February 13, 2012, DHH wrote Respondent advising that it did not have a death certificate for "Harriet Jenkins." On May 25, 2012, Respondent forwarded, via to Ms. Joseph, a copy of Harriet Johnson's death certificate, and on May 26, 2012, Ms. Joseph confirmed that Respondent had received the correct death certificate. Requests by Ms. Joseph for the status of the legal matters went unanswered until July 12, 2012, when Respondent wrote Ms. Joseph, again asking her for information needed to locate Harriet Johnson's death certificate-a death certificate that Respondent already had in her possession and that Ms. Joseph already had confirmed was correct. That same day, Ms. Joseph again confirmed that Respondent had the correct death certificate. On November 19, 2012, after this complaint was received, Respondent again wrote Ms. Joseph requesting information so that she could obtain the correct death certificate for Harriet Johnson. Ms. Joseph responded, "Would you PLEASE READ my dated 5/26112 attached above. You should know by now that you have EVERYTHING you need to proceed with this process!" Throughout the three years of representation, Ms. Joseph's telephone calls were unanswered or not returned; s and letters received only sporadic responses. Despite completing little to none of the legal work for which she was hired, Respondent returned none of the fee paid, intentionally converting client funds to her own use. In February 2014, Ms. Joseph retained the services of another attorney who, for a $2,400 fee, completed the legal services for which Respondent initially was hired. In her initial response, Respondent stated that she did not have verification that Harriet Johnson's death certificate was correct until November 26, 2012; however, the advising Respondent that she had the correct death certificate was sent by Ms. Joseph to Respondent on May 26, 2012, six months earlier. Seeking clarification on the inconsistencies, on January 17, 2013, and on November 18, 2013, ODC sent to Respondent requests for a supplemental response. On March 27, 2014, a third request for a supplemental response was mailed to Respondent at her preferred address. Not receiving the supplemental response, on July 2, 2014, ODC Investigator Jeremy Norwood personally served Respondent with a subpoena to appear for a sworn statement on July 15, On 4

5 July 14> 2014> Respondent sent a facsimile to ODC> advising that she would not be present for the sworn statement due to a medical matter. Respondent's refusal to provide a supplemental response and refusal to comply with a subpoena to appear for a sworn statement establish a knowing> if not intentional, failure to respond to and cooperate with ODC. Respondent's conduct in ODC is in violation of Rules 1.3 (diligence); 1.4(a) (communication); l.s(a) (reasonable fee); l.s(f)(s) (retmn of unearned fee; disputed funds in trust account); 1.15( d) (prompt delivery of client funds); 8.1(b) (failure to respond); 8.l(c) (failure to cooperate); 8.4(a) (violate or attempt to violate Rules of Professional Conduct); and 8.4(c) (dishonest conduct). COUNT III (ODC ) On September 9, 2014> the Office of Disciplinary Counsel received a complaint from attorney Raven Nicole Matthews-Pillette, and the matter was opened as ODC investigative file ODC On September 24, 2014, ODC forwarded a copy of the complaint and a request for an initial response via certified mail to Respondent at her primary address registered with the Louisiana State Bar Association. See Louisiana Supreme Court Rule XIX, 8C. The certified mail was received and signed for by Respondent on October 8, To date> no response has been provided to ODC. Respondent requested Matthews-Pillette's assistance in the representation of Valery Lewis in a workers' compensation matter. Lewis v. East Ridge Nursing Home, docket number , Office of Workers' Compensation> District 4. The two attorneys agreed to share the attorney fee equally. Lewis approved of Matthews-Pillette's co-representation and signed an agreement to that effect. Matthews-Pillette reviewed the file> participated in a February 2013 private mediation, handled settlement negotiations> participated in court-ordered status conferences> and communicated with opposing counsel and with Respondent. After negotiations were complete, orders of approval and dismissal were signed on February 18> 2014, and mailed to Respondent and to opposing counsel that same date. The settlement check was mailed to Respondent on February 20, On Wednesday, March 5, 2014> in response to an inquiry from Matthews Pillette> Respondent wrote that she was "awaiting the check clearance and judgment." Matthews-Pillette's repeated attempts to recover her earned fees from Respondent have been unsuccessful. Respondent intentionally failed to forward to Matthews-Pillette her earned share of the attorney fee received, which under their agreement amounted to 50% of$4,000. Respondent's conduct in ODC is in violation of Rules 1.15(d) (prompt notice of receipt of third party funds); 1.15( e) (prompt distribution of third party funds; holding disputed funds separately); 8.1(b) (failure to respond); 8.1(c) (failure to cooperate); 8.4(a) (violate or attempt to violate Rules of Professional Conduct); and 8.4(c) (dishonest conduct). 5

6 By letter dated February 23, 2015, the formal charges were mailed via certified mail to Respondent's secondary registration address. 4 The charges were received at that address on or before February 27, Respondent failed to file an answer to the charges within the time period allowed by Louisiana Supreme Court Rule XIX, ll(e)(3). Accordingly, on March 25, 2015, ODC filed a motion to have the charges deemed admitted. On April22, 2015, the Chair of Hearing Committee Number 22 5 signed an order declaring the formal charges deemed admitted and proven by clear and convincing evidence. The order granted Respondent twenty days in which to file a motion to recall the order, which she failed to do. ODC filed its written argument on sanctions, with supporting exhibits, on June 19, After reviewing ODC's submission, the Committee concluded that Respondent violated the Rules as charged, with a few exceptions. The Committee did not address Rules 1.15( d) and 1.16(a)(3) in Count 1 and Rules 8.4(a) and 8.4(c) in Count 3. When assessing the appropriate sanction, the Committee made the following findings and conclusions: [T]he Respondent violated duties owed to [her] clients, to the public, to the legal profession as a whole and as a professional. The facts that have been deemed admitted and supported by the record are that clients paid Respondent legal fees for services in Count I and Count II and Respondent thereafter maintained inadequate communications with the clients and performed little to no substantial legal work. Respondent then intentionally failed to return or to protect any of the unearned fees. In failing to refund unearned attorney fees amounts to conversion of client funds. Her failing to refund unearned fees, provide accountings and place disputed fees in trust was knowing, inasmuch as she received requests from the client for the return of fees and she failed to take appropriate action. There can be no doubt the misrepresentations she made to the clients, her lack of response to not only the clients but also the ODC and the mishandling of funds entrusted to her in Count I, Count II, and Count III were intentional acts. Respondent's failure to cooperate in the disciplinary investigation of all three matters was knowing. She received correspondence from ODC requesting information, but failed to properly respond to request[ s] for supplemental information in Count I and Count II and to properly respond to the complaint in Count III. 4 Respondent's secondary registration address is 607 Adolph St., Delcambre, Louisiana The Committee was composed of Franchesca Hamilton-Acker (Chairwoman), Michael Corry (Lawyer Member), and Yvonne Olivier-Hample (Public Member). 6

7 Respondent's failme to perform the services she was hired to provide delayed the clients' legal matters, deprived the co-attorney of funds that was due her and no doubt caused them much frustration. In failing to return unearned fees, Respondent caused damage to her clients by depriving them of their funds. In one case, the client hired and paid another attorney to complete the work that Respondent was hired to complete. It appears to date that Respondent has not retmned any fees to Ms. Warren, Ms. Joseph or the attorney fees earned by Ms. Matthews-Pillette. Pmsuant to the ABA Standards disbarment is the appropriate baseline sanction and Louisiana jmisprudence supports this sanction. [Citation omitted.] The intentional dishonesty and deceit to the clients, co-attorney and ODC is the type of conduct that destroys the trust and confidence of the public in the legal profession and the legal system. The facts deemed admitted supports the following aggravating circumstances: 1) Dishonest and selfish motive 2) Pattern of misconduct 3) Multiple offenses 4) Refusal to acknowledge the wrongful nature of conduct 5) Indifference in making restitution The one mitigating circumstance of Respondent not having a prior disciplinary record is outweighed substantially by the number and severity of the complaints made against the Respondent and the inadequate and/or lack of a defense raised by the Respondent. Hearing Committee Report, pp Based on the foregoing, the Committee recommended that Respondent be disbarred. The Committee also recommended that Respondent provide accountings to Ms. Warren and Ms. Joseph and refund all unearned fees. Likewise, the Committee recommended that Respondent provide to Ms. Matthews-Pillette the attorney fees owed to her. Finally, the Committee recommended that Respondent be assessed with the costs and expenses of this matter. On August 20,2015, ODC filed a notice of no objection to the Committee's report. ODC ' filed its pre-argument brief on October 1, 2015, in which it argued that disbarment was the appropriate sanction. 7

8 Oral argument was heard on November 5, 2015, before Board Panel "B". 6 Deputy Disciplinary Counsel Susan C. Kalmbach appeared on behalf of ODC. Respondent did not appear. ANALYSIS OF THE RECORD BEFORE THE BOARD I. Standard of Review The powers and duties ofthe Disciplinary Board are defined in 2 of Louisiana Supreme Court Rule XIX. Rule XIX, 2(G)(2)(a) states that the Board is "to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges... and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations." Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of"manifest enor." 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, ll(e)(3). The additional findings of the committee are supported by the record. B. De Novo Review The Committee conectly applied the Rules of Professional Conduct. The legal conclusions of the Committee are supported by the factual allegations asserted in the formal 6 Board Panel "B" was composed of Edwin G. Preis, Jr. (Chairman), Walter D. White (Lawyer Member), and Evans C. Spiceland, Jr. (Public Member). 8

9 charges and/or by the evidence submitted in support of the allegations. See In re Donnan, (La. 1/10/03), 838 So.2d 715. However, as mentioned above, the Committee did not address Rules 1.15(d) and 1.16(a)(3) in Count 1 and Rules 8.4(a) and 8.4(c) in Count 3. The Board finds that these Rules were violated. Rule 1.15( d) states, in pertinent part, that a lawyer shall promptly notify and deliver funds or other property to a client or third party in which they have an interest. The Rule also states that a lawyer shall render a full accounting upon request. In Count 1, despite being discharged by Ms. Warren on August 24, 2012, Respondent has not returned the unearned fees. Rule 1.16( a)(3) states that a lawyer shall withdraw from the representation of a client upon discharge. In Count 1, despite being discharged by Ms. Warren, Respondent failed to withdraw from the representation. In fact, in her correspondence with ODC, Respondent expressed a desire to continue representing Ms. Warren. See ODC Exhibit 4. Rule 8.4(c) states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. In Count 3, Respondent intentionally failed to pay Ms. Matthews-Pillette her portion of the attomey fees, despite their agreement. Rule 8.4(a) states that it is professional misconduct to violate or attempt to violate the Rules of Professional Conduct. By violating the other Rules in Count 3, Respondent violated Rule 8.4(a). Accordingly, the Board fmds that Respondent violated Rules 1.15(d) and 1.16(a)(3) in Count 1 and Rules 8.4(a) and 8.4(c) in Count 3. The remainder of the Rule violations found by the Committee are supported by the record. 9

10 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; 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 clients and the profession. Respondent caused significant harm to Ms. Warren and Ms. Joseph by collecting fees then failing to complete the work for which she was hired. Respondent has not returned the unearned fees. Ms. Joseph had to hire another attorney to complete her legal matter. Respondent also caused significant harm to Ms. Matthews-Pillette by failing to honor their feesharing agreement. Ms. Matthews-Pillette has not received her portion of the fee. Respondent also caused ODC to expend additional resources by failing to cooperate with its investigations. The Board adopts the aggravating factors recognized by the Committee: dishonest or selfish motive; a pattern of misconduct; multiple offenses; refusal to acknowledge wrongful nature of conduct; and indifference to making restitution. The Board also recognizes the aggravating factor of bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. The only mitigating factor supported by the record, as noted by the Committee, is Respondent's lack of a prior disciplinary record. 10

11 B. The ABA Standards and Case Law The ABA Standards for Imposing Lawyers Sanctions suggests disbarment is the appropriate sanction. Standard 4.41 states, in pertinent part: "Disbarment is generally appropriate when: (a)... 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." As discussed above, Respondent knowingly, if not intentionally, failed to complete the Wan-en and Joseph matters, despite being paid a flat fee to do so. Respondent has refused to return the unearned fees owed to those clients, causing significant harm. Both clients paid for legal services they did not receive. In addition to the aforementioned misconduct, Respondent has essentially converted the fees owed to Ms. Matthews-Pillette. Given the circumstances described in the formal charges and Respondent's lack of participation in the investigation and prosecution of this matter, it appears that Respondent has essentially abandoned her law practice. Accordingly, disbarment appears to be the baseline sanction, which is supported by the case law of the Louisiana Supreme Court. In In-re Hatfield, the Court disbaned Mr. Hatfield for abandoning his law practice, which caused substantial harm to his clients (La. 2/20/09), 2 So.3d 425. Mr. Hatfield allowed the formal charges to become and remain deemed admitted. The Court concluded that Mr. Hatfield "neglected [five client matters], failed to communicate with his clients, failed to refund unearned fees, and failed to cooperate with the ODC in its investigations."!d. at 429. There were several aggravating factors present: dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability 11

12 of the victim, and substantial experience in the practice of law. The only mitigating factor present was the absence of a prior disciplinary history. Recently, in In re Weber, the Court disbatted Mr. Weber for converting client funds (La. 8/28/15), --- So.3d ---, 2015 WL Mr. Weber received an insurance check on behalf of a client, which was for the client's living expenses. Mr. Weber deposited the check in an account other than his trust account and failed to respond to the client's requests for the funds. The client never receive his money. Mr. Weber allowed the formal charges to become and remain deemed admitted. There were several aggravating factors present: a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution. The only mitigating factor present was Mr. Weber's lack of a disciplinary history. Here, like in the two cases above, Respondent has neglected client matters and converted funds, causing significant hatm to those involved. Also, as in Hatfield and Weber, there are several aggravating factors present here, which clearly outweigh the lone mitigating factor. Hatfield and Weber also demonstrate that disbarment is the appropriate sanction despite Respondent's lack of a prior disciplinary record. CONCLUSION Accordingly, the Board adopts the Committee's factual findings and legal. Likewise, the Board's adopts the Committee's recommendation of disbarment along with the other recommendations of the Committee, which require that Respondent provide accountings and 12

13 refunds to Ms. Warren and Ms. Joseph; pay the fees owed to Ms. Matthews-Pillette; and pay the costs and expenses of this matter. RECOMMENDATION The Board recommends that Respondent, Janinne Latrell Gilbert, be disbarred. The Board also recommends that Respondent be ordered to provide accountings and refunds to Ms. Warren and Ms. Joseph, pay the fees owed to Ms. Matthews-Pillette, and pay the costs and expenses of this matter. LOUISIANA ATTORNEY DISCIPLINARY BOARD Carl A. Butler George L. Crain, Jr. Anderson 0. Dotson, ill Carrie L. Jones BY: Evans C. Spiceland, Jr. FOR THE ADJUDICATIVE COMMITTEE 13

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... 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. (b)... (c)... (d)... (e)... (f) Payment of fees in advance of services shall be subject to the following rules:... (5) When the client pays the lawyer a fixed fee, a minimum fee or a fee drawn from an advanced deposit, and a fee dispute arises between the lawyer and the client, either during the course of the representation or at the termination of the representation, the lawyer shall immediately refund to the client the unearned portion of such fee, if any. If the lawyer and the client disagree on the unearned portion of such fee, the lawyer shall 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. 14

15 Rule Safekeeping Property (a)... (b)... (c)... (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. For purposes of this rule, the third person's interest shall be one of which the lawyer has actual knowledge, and shall be limited to a statutory lien or privilege, a final judgment addressing disposition of those funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute... Rule Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:... (3) the lawyer is discharged. (b)... (c)... (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 incwted. 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: (a)... (b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6; or 15

16 (c) Fail to cooperate with the Office of Disciplinary Counsel in its investigation of any matter before it except for an openly expressed claim of a constitutional privilege. Rule 8.4. Misconduct It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b)... (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;... 16