ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ROY JOSEPH RICHARD, JR. NUMBER: 14-DB-051 RECOMMENDATION TO THE LOUISIANA SUPREME COURT

Transcription

1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ROY JOSEPH RICHARD, JR. NUMBER: 14-DB-051 RECOMMENDATION TO THE LOUISIANA SUPREME COURT 14-DB-051 1/12/2016 INTRODUCTION This is a disciplinary matter based on the filing of formal charges by the Office of Disciplinary Counsel ( ODC ) against Roy Joseph Richard, Jr. ( Respondent ), Bar Roll Number The charges, which consist of one count, allege violations of the following Rules of Professional Conduct ( Rule(s) ): 1.15(a) (safekeeping client property), 8.1(b) (failure to respond to lawful demand by disciplinary counsel), 8.1(c) (failure to cooperate in disciplinary counsel s investigation), and 8.4(a) (violate or attempt to violate the Rules). 2 Respondent allowed the charges to become and remain deemed admitted pursuant to Louisiana Supreme Court Rules XIX, 11(E)(3). 3 However, a hearing was held for the purposes of taking evidence in mitigation. The Committee concluded that Respondent violated the Rules as charged and 1 Respondent is 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 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.

2 recommended that he be suspended from the practice of law for one year and one day, with all but sixty days deferred. For the following reasons, the Board adopts the factual findings, legal conclusions, and recommendation of the Committee. Accordingly, the Board recommends that Respondent be suspended from the practice of law for one year and one day, with all but sixty days deferred. PROCEDURAL HISTORY ODC filed the formal charges on October 22, The charges state, in pertinent part: On November 5, 2013, the Office of Disciplinary Counsel (ODC) received notice from American Bank & Trust Company that on October 30, 2013, an item for $250 was presented for payment from account number: XX-X475-X, an IOLTA account in the name of Roy J. Richard, Jr. d/b/a Roy J. Richard, Jr. The account did not have sufficient funds to cover the check; however, the item was paid, and an overdraft occurred. An October 31, 2013 deposit restored the account to a positive balance. Respondent's trust account registration filed with the Louisiana State Bar Association confirms that account number XX-X475-X at American Bank & Trust Company is Respondent's trust account. On November 11, 2013, ODC sent notice to Respondent of the overdraft via certified mail to Respondent's primary and preferred address registered with the Louisiana State Bar Association. Respondent was directed to submit a written explanation for the overdraft and to provide ODC with specific documentation. Despite receiving a copy of this correspondence on November 13, 2013, Respondent did not respond. As a result, ODC opened disciplinary complaint number ODC On March 14, 2014, ODC sent a second notification of the overdraft to Respondent; Respondent was directed to submit a written explanation and documentation in response to the now-opened complaint. This second request was sent via certified mail to Respondent's primary and preferred address registered with the Louisiana State Bar Association. The correspondence was returned by the United States Postal Service to ODC as "unclaimed." On April 10, 2014, ODC made a third attempt to obtain a written response and documentation from Respondent. This third request was sent via certified mail to the address associated with Respondent's IOLTA account on the bank overdraft notice. This address also was registered with the Louisiana State Bar Association as Respondent's "secondary" address. The correspondence was returned by the United States Postal Service to ODC stamped as "moved left no address." On April 14, 2014, ODC prepared a fourth letter notifying Respondent of the overdraft notice and directing that Respondent submit to ODC a written response to the complaint, as well as specified documentation. That 2

3 correspondence and a copy of the November 4, 2013, overdraft notice from American Bank & Trust Company were hand-delivered to Respondent on April 15, 2014, by ODC Investigator Brooke A. Hebert. Respondent signed for receipt. Still receiving no response, on July 31, 2014, ODC sent correspondence to Respondent delineating this office's efforts to obtain his response to the complaint and asking that Respondent contact the office to schedule a sworn statement. The letter was sent via certified mail to Respondent's primary and preferred address registered with the Louisiana State Bar Association. The correspondence was received on August 1, To date, Respondent has not filed a reply and has not contacted ODC to schedule a sworn statement. Respondent's intentional refusal to submit a written response to the complaint and to provide ODC with requested documents despite multiple requests, one via hand-delivery, is in violation of Rule 8.1(b)-(c) (failure to respond to a lawful demand for information from a disciplinary authority; failure to cooperate with an ODC investigation). Respondent's refusal to cooperate leaves ODC unable to determine the specifics regarding the reported overdraft. However, despite Respondent's attempt to thwart this investigation, the overdraft itself indicates that Respondent failed to maintain complete records of the IOLTA account funds, in violation of Rule 1.15(a) (safekeeping client property). Further, it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct. Rule 8.4(a). By letters dated October 24, 2014, the formal charges were sent via certified mail to Respondent s primary and secondary registration addresses. Respondent received and signed for the charges at his primary address on October 28, Respondent failed to answer the charges within the time period prescribed by Louisiana Supreme Court Rule XIX, 11(E)(3). Accordingly, on December 9, 2014, ODC filed a motion to have the formal charge deemed admitted. The Chairman of Hearing Committee Number 5 signed an order on December 18, 2014, declaring the formal charges to be deemed admitted and proven by clear and convincing evidence. Respondent was given twenty days in which to file a motion to recall the order. He failed to do so. ODC filed its written argument and evidence on February 11, The Committee issued its report on April 17, The Committee found that Respondent violated the Rules as charged and recommended that he be suspended from the 3

4 practice of law for one year and one day. ODC filed a notice of no objection to the Committee s report on April 20, 2015, and the matter was set for oral argument before Board Panel B. However, on May 18, 2015, Respondent, through his counsel Leslie J. Schiff, filed a motion to remand the matter to the Committee for the sole purpose of taking evidence on the issue of sanction. ODC did not object to this request. The motion was granted on May 25, 2015, by order of the Chairman of Board Panel B. Upon remand, the Committee held a hearing on the issue of sanction on July 21, The Committee heard testimony from Respondent, LaDonte Murphy, and Edward Lopez. ODC and Respondent also stipulated that five other witnesses Respondent intended to call would testify to Respondent s good character and reputation. The Committee issued a supplemental report revisiting the sanction issue on September 23, The Committee found several mitigating factors to be present: absence of a dishonest or selfish motive, sincere remorse, acknowledgment of the wrongful nature of his conduct, and good character and reputation. The Committee also found that Respondent did not cause any actual harm except the inconvenience and expense to the disciplinary process because of his lack of cooperation. As aggravating factors, the Committee recognized Respondent s prior disciplinary offense 4 and his substantial experience in the practice of law. 5 Based upon the mitigating evidence, the Committee recommended that Respondent be suspended from the practice of law for one year and one day, with all but sixty days deferred. ODC and Respondent filed notices of no objection to the Committee s report and recommendation on September 28 and October 9, 2015, respectively. ODC also filed a brief with the Board on October 7, Respondent received on admonition on September 20, 2013, for failing to cooperate with ODC in four complaint investigations. 5 Respondent was admitted to the practice of law in Louisiana on April 16,

5 Oral argument of this matter was heard on November 5, 2015, before Board Panel B. 6 Deputy Disciplinary Counsel Susan C. Kalmbach appeared on behalf of ODC. Respondent and his counsel waived their appearance at oral argument. ANALYSIS OF THE RECORD BEFORE THE BOARD I. Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of Louisiana Supreme Court Rule XIX. Rule XIX, 2(G)(2)(a) states that the Board is to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations. Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 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). The additional findings of the Committee are supported by the record. B. De Novo Review The legal conclusions of the Committee are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the allegations. See In re 6 Board Panel B was composed of Edwin G. Preis, Jr. (Chairman), Walter D. White (Lawyer Member), and Evans C. Spiceland, Jr. (Public Member). 5

6 Donnan, (La. 1/10/03), 838 So.2d 715. The record supports the conclusion that Respondent violated Rules 8.1(b), 8.1(c), 1.15(a), and 8.4(a). 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: 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 negligently violated a duty to his client by converting money in his trust account. Respondent s conversion did not cause any actual harm and was quickly remedied. There was the potential for harm, but it was minor given the relatively low amount of money involved ($250). However, Respondent knowingly and intentionally violated his duty to the profession by failing to respond to and cooperate with ODC s investigation of the trust account overdraft. This conduct caused ODC to expend additional resources in the investigation of this matter. The Board adopts the aggravating factors recognized by the Committee: a prior disciplinary offense and his substantial experience in the practice of law. As noted above, Respondent s prior discipline was an admonition for failing to cooperate in four ODC investigations. It is important to note that the admonition was issued on September 20, In the present matter, ODC sought a response to the overdraft notification by letter dated November 11, 2013, which was received by Respondent on November 13, See ODC Exhibits 2 & 3. 6

7 Respondent never responded to the November 13, 2013 correspondence, nor did he respond to ODC s subsequent attempts to obtain a response. Thus, less than two months after being admonished by the Disciplinary Board, Respondent engaged in the same misconduct. 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. Nonetheless, as discussed by the Committee, there are several mitigating factors present as well, which the Board adopts: absence of a dishonest or selfish motive, sincere remorse, acknowledgment of the wrongful nature of his conduct, and good character and reputation. B. The Case Law As discussed above, of the two instances of misconduct in this matter conversion and failure to cooperate Respondent s failure to cooperate with ODC s investigation is the greater of the two. Thus, Respondent s failure to cooperate with ODC is the focus of the Board s sanction analysis. The Board or Court have imposed sanctions ranging from public reprimand to a one year and one day suspension for failing to cooperate with ODC in an investigation(s). In In re Blair, the Board publicly reprimanded Mr. Blair for negligently failing to cooperate with ODC in one investigation. Ruling of the Disciplinary Board, 10-DB-038 c/w 11-DB-057 (8/20/13). The following aggravating factors were present: prior disciplinary offense (diversion) and substantial experience in the practice of law. The following mitigating factors were present: absence of a dishonest or selfish motive and full and free disclosure to the disciplinary board and a cooperative attitude at the hearing of this matter. In In re Augustine, the Court suspended Mr. Augustine for thirty days for two instances of failure to cooperate with ODC (La. 9/26/07), 707 So.2d 1. The hearing committee 7

8 in the matter found that Mr. Augustine s failure to cooperate was done knowingly and [was] of an inexcusable nature. Id. at 2. There were no aggravating factors present. The following mitigating factors were considered: absence of a prior disciplinary record and remorse. In In re Duhy, the Court suspended Mr. Duhy for one year and one day, with all but 3 months deferred, for failing to cooperate with ODC s investigation of three matters (La. 11/21/14), 154 So.3d 541. The Court found that Respondent acted knowingly. The following aggravating factors were present: a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. Notably, Mr. Duhy had been previously disciplined five times for failing to cooperate with ODC. The following mitigating factors were present: personal or emotional problems and remorse. In In re Fahrenholtz, the Court suspended Mr. Fahrenholtz for one year and one day for two instances of failure to cooperate with ODC and for failure to maintain his professional obligations (La. 10/2/09), 18 So.3d 751. The Court found that Mr. Fahrenholtz s conduct was particularly egregious. [W]e find that respondent's failure to cooperate with the ODC is more egregious than the typical failure to cooperate case. At no point in this proceeding has respondent made any effort to respond to repeated inquiries from the ODC. Additionally, he has not complied with his other professional obligations as a lawyer, such as paying his bar dues and the disciplinary assessment and completing his mandatory continuing legal education requirements. As a result, respondent has been ineligible to practice law since Finally, respondent's misconduct is particularly troublesome because he was an elected official at the time. Id. at The Court noted several aggravating factors: pattern of misconduct; multiple offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; and substantial experience in the practice of law. There was only one mitigating factor present: absence of a prior disciplinary record. 8

9 The facts of this matter appear to be most similar to those in Duhy. Here, like in Duhy, Respondent knowingly and intentionally failed to cooperate with ODC. Also, Respondent has a disciplinary history based upon his failure to cooperate with ODC. However, there appears to be more mitigating factors and evidence present here than in Duhy. Thus, the sanction recommended by Committee is appropriate: a one year and one day suspension from the practice of law, with all but sixty days deferred. As mentioned above, ODC and Respondent did not object to this recommendation. CONCLUSION The Board adopts the factual findings, legal conclusions, and recommendation of the Committee. The Board recommends that Respondent be suspended from the practice of law for one year and one day, with all but sixty days deferred, subject to a one-year period of unsupervised probation conditioned on his refraining from engaging in additional violations of the Rules. 9

10 RECOMMENDATION The Board recommends that Respondent, Roy Joseph Richard, Jr., be suspended from the practice of law for one year and one day, with all but sixty days deferred, subject to a one-year period of unsupervised probation conditioned on his refraining from engaging in additional violations of the Rules. The probationary period should commence from the date Respondent and ODC execute a formal probation plan. Any failure of Respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. The Board also recommends that Respondent be assessed with the costs and expenses of this matter. LOUISIANA ATTORNEY DISCIPLINARY BOARD Carl A. Butler George L. Crain, Jr. Anderson 0. Dotson, III Carrie L. Jones Dominick Scandurro, Jr. R. Lewis Smith, Jr. Evans C. Spiceland, Jr. Walter D. White BY: & Edwin G. Preis, Jr. FOR THE ADJUDICATIVE COMMITTEE 10

11 APPENDIX Rule Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer s possession in connection with a representation separate from the lawyer s own property. Except as provided in (g) and the IOLTA Rules below, funds shall be kept in one or more separate interest-bearing client trust accounts maintained in a bank or savings and loan association: 1) authorized by federal or state law to do business in Louisiana, the deposits of which are insured by an agency of the federal government; 2) in the state where the lawyer s primary office is situated, if not within Louisiana; or 3) elsewhere with the consent of the client or third person. No earnings on a client trust account may be made available to or utilized by a lawyer or law firm. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. Rule 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 (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; 11