LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: RAUSHANAH SHAKIA HUNTER NUMBER: 16-DB-085 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This attorney discipline matter arises out of formal charges filed by the Office of Disciplinary Counsel ( ODC ) against Raushanah Shakia Hunter ( Respondent ), bar roll number 34227. 1 The charges, which consist of two counts, allege that Respondent violated the following Rules of Professional Conduct ( Rule(s) ): 1.3, 1.4, 1.7, 8.l(c), 8.4(a), and 8.4(c). 2 Respondent stipulated to the violation of these Rules before the hearing of this matter. The Hearing Committee assigned to this matter concluded that Respondent violated the Rules as charged and recommended that she be suspended for one year and a day, with all but 4 months deferred conditioned on a two-year period of probation with conditions. For the following reasons, the Board adopts the factual findings, legal conclusions, and recommendation of the Committee. PROCEDURAL HISTORY ODC filed the charges on November 8, 2016. The charges read, in pertinent part: Count I. The Office of Disciplinary Counsel received a complaint from Haneefah Solomon Bell who advised the Office of Disciplinary Counsel that she hired the Respondent in or around November of 2013 in connection with a claim for personal injuries arising out of contamination of an apartment complex infested with mold and mildew. She engaged the services of the Respondent to represent both she and her minor daughter, each of whom allegedly sustained significant 1 Respondent is currently eligible to practice law. 2 See the attached Appendix for the text of the Rules. 1
health issues arising out of the apartment complex s failure to properly maintain, clean, and remediate a mold infestation. Before approaching the Respondent, Ms. Bell secured the services of an environmental consulting firm who tested the apartment complex for toxic material and molds. That report, dated November 9, 2012 was in hand and presented to the Respondent at the time of the engagement. The client advised that she was told that Respondent would accept the representation and file suit on behalf of she and her daughter. She specifically advised that no fee until case was settled would be the fee arrangements clearly a contingency fee arrangement. The client however was not provided with a copy of any contingency fee agreement and it does not appear from the client s recollection that a contingency fee contract was actually signed. While Respondent filed a petition for damages against the responsible parties on November 12, 2013, defendant filed a general denial and discovery ensued. After early discovery, the defendants filed a motion for summary judgment. The matter was set for hearing on February 23, 2015 but the Respondent failed to appear or file any pleadings in opposition to the motion for summary judgment. Thereafter, the Respondent failed to inform Ms. Bell that her case had been thrown out. Moreover, because her repeated phone calls for updates about the status of her case were not being returned, the client sought out the advice of another attorney in September of 2015. That attorney was the first individual to advise the client that her lawsuit had been dismissed on a motion for summary judgment since the Respondent had filed no opposition and made no appearance. Thereafter, the client attempted to call the Respondent, texted her, left voicemails and stopped by her office, even leaving a note. The client even attempted to stop by the Respondent s residence, but none of her communication efforts were ever responded to. The client in one instance did call the Respondent s phone and when Respondent answered she pretended that the client had the wrong number. The client filed a complaint with the Office of Disciplinary Counsel indicating that she needed her file materials, her mold remediation report, the pictures, doctor s notes and other information that she had entrusted to the Respondent, none of which had been returned by the Respondent despite multiple attempts by the client to obtain her file. Notice of the complaint was forwarded to the Respondent at her bar registration address, the certified mail was never picked up by the Respondent and it was returned to the Office of Disciplinary Counsel. A subpoena was issued for the Respondent and she was served not only with a subpoena for her sworn testimony but with notice of the complaint and with instructions to provide her substantive response. She failed to do so until December 1st, the same date that her sworn statement was to occur. During the Respondent s sworn statement, she acknowledged that despite having the litigation file subpoenaed she had failed to bring it with her to her investigative sworn statement. The Respondent was specifically instructed by ODC to immediately physically return all of the file information that had been provided to her by her client. She failed to do so. The Respondent was instructed to write to the client to advise her that she had committed malpractice and that she may have a claim. The Respondent failed to do so. The Respondent was instructed to write to the client to advise that she may now have a conflict of interest and that she 2
should consider consulting with independent counsel of her own choosing. The Respondent failed to do so. The Office of Disciplinary Counsel instructed Respondent to immediately confirm to this office that she had accomplished all of the instructions regarding notification to her client. The Respondent failed to do so. The Respondent s conduct in this matter reflect clear violations of Rule 1.3 lack of diligence; Rule 1.4 lack of communication; Rule 1.7 a conflict of interests following her malpractice; Rule 8.4(c) dishonesty and misrepresentation in failing to disclose to the client her malpractice; and Rule 8.1(c) failure to cooperate with the Office of Disciplinary Counsel. Count II. Ernest R. Jones hired the Respondent in or around June of 2013 to represent him in a civil suit against his former employer, the Louisiana Department of Revenue. He specifically provided the Respondent with an advanced payment of attorney s fees in the amount of $600 together with filing fees totaling $520. The civil matter involved a claim for discrimination and harassment in the work place. Respondent accepted that representation and on or about August 1, 2013 filed a petition on the client s behalf against the Louisiana Department of Revenue and Taxation in the 19th Judicial District Court. After the client provided his deposition in connection with the matter, a motion for summary judgment was filed by the defense setting forth a statement of uncontested facts. The Respondent was to have filed a response to the motion for summary judgement and attend a hearing but failed to do so. A copy of the complaint was forwarded to the Respondent which was signed for on January 19, 2016. Notwithstanding having been served with a copy of the complaint, the Respondent failed and refused to file a written response as required. As occurred in connection with the matter outlined in Count I hereinabove, for a second time, the Office of Disciplinary Counsel was required to issue a subpoena to the Respondent commanding her appearance to provide a sworn statement with information responding to the complaint of Ernest Jones. She was instructed to appear on March 22, 2016 and to provide a complete copy of the entire file for Ernest R. Jones vs. LA Department of Revenue and Taxation. The Respondent did in fact appear but once again, failed to bring the file of the complaining party as she was required to do pursuant to the terms of the subpoena. She acknowledged receiving the complaint and acknowledged that she failed to respond. She provided the Office of Disciplinary Counsel with no explanation for her failure to respond. She acknowledged that a court date was set and she missed the court appearance as well. Once again the matter at issue was a motion for summary judgment to which she failed to file an appropriate response or attend the hearing. As a result, the motion for summary judgment was granted and Mr. Jones case was dismissed. The client categorically denies knowing that his suit had been dismissed until he was told of that outcome by the Office of Disciplinary Counsel following investigation of this matter. The client further alleged repeated instances of failure to return to return phone calls or otherwise communicate with him by the Respondent. When asked if she had returned all the client file materials to the complainant with instructions to secure independent counsel as a 3
result of her malpractice, the Respondent once again indicated that she had failed to do so. The Respondent s conduct reflects clear violations of Rule 1.3 lack of diligence; Rule 1.4 lack of communication; Rule 1.7 conflict of interest; Rule 8.4(c) conduct involving dishonesty or misrepresentation; Rule 8.1(c) failure to cooperate with the disciplinary investigation; and Rule 8.4(a) violate or attempt to violate the Rules of Professional Conduct. Respondent filed an answer to the charges on December 27, 2016. On April 18, 2017, Respondent filed her stipulations to the all the factual allegations set forth within the formal charges as well as the Rules of Professional Conduct violations set forth therein. A hearing was held on April 25, 2017 before Hearing Committee No. 14 ( the Committee ). 3 The hearing was held for the principal purpose receiving mitigating and aggravating evidence to be considered by the Committee in recommending a sanction. Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of the ODC. Respondent appeared with counsel, Donald W. North and Gail N. McKay. On July 17, 2017, the Committee filed its report. Pursuant to the stipulations, the Committee found that Respondent violated the Rules as charged. The Committee concluded that Respondent violated duties owed her clients; acted negligently, knowingly, and intentionally; and that her conduct caused actual harm to her clients causes of action and may have damaged their opportunities to seek appropriate redress through appellate relief or through pursuit of legal malpractice claims. The Committee recognized the following aggravating factors: multiple offenses, pattern of misconduct, and failure to cooperate with ODC. The Committee also recognized several mitigating factors: absence of a prior disciplinary record, good character and reputation, inexperience in the practice of law, genuine remorse, a clear and genuine desire for assistance with her law practice, and positive changes to her law practice. The Committee also made the following findings when considering the appropriate sanction: 3 The Committee was composed of Virginia G. Benoist (Chair), John H. Smith (Lawyer Member), and James R. Mobley (Public Member). 4
The Committee found that this particular Respondent is a very sympathetic Respondent with few resources. She is truly remorseful, takes full responsibility for her actions, and genuinely seeks [the] help she knows she needs to practice in a professional manner and looks to the LSBA for that help. This Respondent does not present as someone who is manipulative; rather, this Respondent presents as a person who is devastated over the harm she has caused. This Respondent also presents as someone who wants to fix the problem. The Respondent stipulated to all of the factual allegations set forth within the Formal Charges as well as the Rules of Professional Conduct violations set forth therein, and ODC stipulated that Respondent has a reputation for good character and Respondent is inexperienced in the practice of law. The Committee concluded that this particular Respondent is worth saving. Her character witnesses were real, down-to-earth people who were credible and sincere in their descriptions of Respondent as a person of good character. The Committee is mindful of the expense this Respondent will incur to comply with the sanctions the Committee finds appropriately address this situation. The Committee also finds that the public must be protected, the ODC needs to be able to do its job, and the very serious work of the ODC cannot be ignored. Hearing Committee Report, pp. 25-26. The Committee recommended a suspension for one year and one day with all but four months deferred subject to a two-year period of probation with the following conditions: 1) attendance at Ethics School, 2) appointment or retention of a mentor through the LSBA sponsored mentoring program, 3) additional education geared toward law office practice management skills, 4) payment of restitution to Mr. Jones in the amounts of $600.00 (attorney fees) and $520.00 (court costs), 5) payment of restitution to Ms. Bell for the cost of the Wilbur Environmental report and any reasonable expenses Ms. Bell incurred from hiring another lawyer to investigate the state of her case with the court, and 6) that Respondent work under supervision of another attorney during the period of probation. On September 8, 2017, Respondent filed a brief objecting to the sanction recommended by the Committee. Respondent argued that the suspension should be fully deferred. On September 26, 2017, ODC filed a brief in which it agreed with the findings and conclusions of the Committee, but argued that the appropriate sanction was a one year and one day suspension with all but six months deferred. Oral argument of this matter was heard on November 9, 2017, 5
before Board Panel B. 4 Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC. Donald W. North appeared on behalf of Respondent. Respondent was also present. 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 Respondent stipulated to the factual allegations in the formal charges. The Board must accept these stipulations. See In re Torry, 2010-0837 (La. 10/19/10), 48 So.3d 1038. 5 The additional factual findings of the Committee are supported by the record and do not appear to be manifestly erroneous. 4 Board Panel B was composed of Melissa L. Theriot (Chair), Pamela W. Carter (Lawyer Member), and Evans C. Spiceland, Jr. (Public Member). 5 In Torry, the Court rejected the Board s conclusion that the Board was not required to accept the stipulations of the parties. The Court held that effect must be given to [the stipulations of the parties] unless they are withdrawn. Torry at 1041. 6
B. De Novo Review In addition to the factual allegations, Respondent stipulated to violating the Rules as charged in the formal charges, which the Board must accept. See Torry, supra. 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 violated duties to her clients Ms. Bell and Mr. Jones. Respondent acted negligently, knowingly, and intentionally. Initially, her actions appear to be the product of negligence, but her subsequent failure to communicate with her clients regarding the status of their matters was knowing and intentional. Her actions caused actual harm to the clients causes of action. At minimum, her clients lost their opportunity for their day in court and may have damaged their opportunity to seek redress through appellate relief and/or legal malpractice claims. Respondent also violated a duty owed to the profession by failing to cooperate with ODC. Respondent failed to follow the instructions of the Office of Disciplinary Counsel to take appropriate remedial efforts designed to notify the clients of the developments of their cases, return their files, and to direct that they should seek independent counsel regarding her potential malpractice. 7
The following mitigating factors are present: absence of a prior disciplinary record, inexperience in the practice of law, 6 and remorse. The Board also adopts the Committee s findings in mitigation that Respondent clearly and genuinely desires assistance with [her practice] [and] has made positive practice changes. The following aggravating factors are supported by the record: multiple offenses and failing to comply with rules or orders of the disciplinary agency. However, it should be noted that, eventually, Respondent fully cooperated with the proceeding. B. The ABA Standards and Case Law As a preliminary matter, the Court s previous commentary on malpractice versus misconduct should be noted. In the past, the Court has stated that a single instance of malpractice does not necessarily rise to the level of sanctionable misconduct. The question of when ordinary legal malpractice becomes an ethical violation is somewhat unclear. Strictly speaking, virtually any time an attorney allows his client's case to prescribe or to become abandoned, it could be said the attorney lacks competence in violation of Rule 1.1 and failed to act with diligence in violation of Rule 1.3. However, as a practical matter, disciplinary sanctions are not always appropriate in every instance in which an attorney commits minor violations of the Rules of Professional Conduct. [Citation omitted.] When significant discipline has been imposed in this context, the cases typically involve situations in which the malpractice is combined with additional misconduct, such as where the attorney acts with deceit or misrepresents facts in an effort to conceal the malpractice from the client. [Citation omitted.] In re Brown, 2007-0995 (La. 10/17/07), 967 So.2d 482, 486. The present matter does not involve a mere instance of malpractice. After Ms. Bell s & Mr. Jones matters were dismissed, Respondent failed to inform them of that important fact. Additionally, Respondent failed to promptly return her clients files and failed to take actions to mitigate the harm caused by the dismissal (e.g. file an appeal or inform her clients to seek the advice of counsel regarding a 6 Respondent was admitted to the practice of law in Louisiana on December 21, 2011. However, she testified that she did not begin practicing law until 2013. Transcript, p. 144. 8
potential malpractice claim). These actions constitute violations of the Rules of Professional conduct and warrant the imposition of a sanction. The ABA Standards for Imposing Lawyers Sanctions suggests that suspension is the baseline sanction for Respondent s misconduct. Standard 4.42 states, in pertinent part: Suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client Here, Respondent neglected two client matters, allowing motions for summary judgment to go unchallenged resulting in her clients matters being dismissed. Furthermore, Respondent failed to communicate with her clients regarding the status of their matters. As discussed above, this conduct caused actual harm to the clients. In the past, the Court has imposed sanctions ranging from fully deferred suspensions to six-month active suspensions for allowing claims to prescribe or become abandoned then failing to inform and/or mislead the client about the issue. In In re Heisler, the Court suspended Mr. Heisler for one year, all deferred, for allowing a personal injury matter to prescribe, failing to inform his client about the prescription, and staging a settlement whereby he disbursed personal funds to his client. 2006-1202 (La. 11/3/06), 941 So. 2d 20. The Court found that Mr. Heisler acting knowingly, but did not cause any harm. The only aggravating factor present was Mr. Heisler s substantial experience in the practice of law. The Court recognized several mitigating factors: absence of a prior disciplinary record, timely good faith effort to make restitution or to rectify consequences of misconduct, full and free disclosure to the disciplinary board or cooperative attitude toward proceedings, and remorse. In In re Thompson, the Court suspended Mr. Thompson for one year, fully deferred, for allowing a worker s compensation matter to prescribe, failing to inform the client of the 9
prescription, and staging a disbursement whereby Mr. Thompson disbursed his personal funds to the client. 1998-0079 (La. 5/8/98), 712 So. 2d 72. Mr. Thompson did not inform his client the claim had prescribed until after the complaint was filed. The Court recognized the following aggravating factors: dishonest or selfish motive, refusal to acknowledge wrongful nature of conduct, and vulnerability of victim. The Court recognized the following mitigating factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board or cooperative attitude toward proceedings, and inexperience in the practice of law. In In re Bruscato, the Court suspended Mr. Bruscato for sixty days for failing to file a client s personal injury lawsuit before the prescriptive deadline. 1999-0287 (La. 6/4/99), 743 So.2d 645. Upon learning that the lawsuit would be met with an exception for prescription and without informing the client, Mr. Bruscato filed a motion to dismiss the suit without prejudice. Mr. Bruscato then urged the client to seek Social Security benefits instead of the personal injury matter. The following aggravating factors were present: vulnerability of the victim, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. The following mitigating factors were present: absence of prior disciplinary record, absence of a dishonest or selfish motive, cooperative attitude toward the proceeding, remorse, and character and reputation. In In re August, the Court suspended Ms. August for two years, with all but sixty days deferred, for allowing a wrongful death action to prescribe, misleading the client about the prescription, and failing to withdraw from the matter after being sued for malpractice by the client. 2010-1546 (10/15/10), 45 So.3d 1019. The Court found that Ms. August acted knowingly and caused actual harm. The Court recognized the following aggravating factors: prior disciplinary offenses, a dishonest or selfish motive, and substantial experience in the 10
practice of law. The mitigating factors of full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings and remoteness of prior offenses were also present. In In re Cade, the Court suspended Mr. Cade for one year and one day, with six months deferred, for allowing a personal injury matter to be dismissed as abandoned and failing to inform the client about the dismissal. 2015-0803 (La. 6/19/15), 166 So.3d 243. The Court found that Mr. Cade acted knowingly and caused significant harm. The following aggravating factors were present: prior disciplinary offenses and substantial experience in the practice of law. The following mitigating factors were present: full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. In In re Bullock, the Court imposed a one year and one day suspension, with six months deferred, based upon Ms. Bullock s failure to file a petition for damages within the prescriptive period for her client and subsequently misleading her client regarding the issue. 2016-0075 (La. 3/24/2016), 187 So. 3d 986. Rather, Ms. Bullock wired funds to the client from her personal account and failed to inform her client of the true status of the matter. The following aggravating factors were present: vulnerability of the victim, substantial experience in the practice of law, and dishonest and selfish motive. The following mitigating factors were present: absence of a prior disciplinary record, timely and good faith effort to make restitution or to rectify the consequences of her misconduct, full cooperation with the disciplinary proceeding, character and reputation, and remorse. The facts of the present matter appear to fall on the lower end of the spectrum above. While Respondent did not timely inform her clients of the dismissal of their matters, she did not engage in the level of deception (i.e. fake settlements ) that is present in many of the cases above. However, the most troubling factor in this matter is Respondent s delayed response in 11
addressing the complaints that form the basis of this matter. Respondent provided two sworn statements during the investigative stage of this matter. See ODC Exhibits 5 & 10. In both sworn statements, ODC provided clear instructions to Respondent on how she should address her misconduct, such as informing her clients of her potential malpractice and the advisability of seeking independent counsel, and returning the clients files. Despite this advice, Respondent did nothing. Based upon this inaction, the Board finds that a period of suspension is appropriate. CONCLUSION The Board adopts the factual findings, legal conclusions, and recommendation of the Committee. Accordingly, the Board recommends that Respondent be suspended for one year and a day, with all but four months deferred. The Board also recommends that Respondent be placed on probation for a period of two years subject to the conditions recommended by the Committee and that she be assessed with the costs and expenses of this matter. 12
APPENDIX Rule 1.3. Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Rule 1.4. Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. (c) A lawyer who provides any form of financial assistance to a client during the course of a representation shall, prior to providing such financial assistance, inform the client in writing of the terms and conditions under which such financial assistance is made, including but not limited to, repayment obligations, the imposition and rate of interest or other charges, and the scope and limitations imposed upon lawyers providing financial assistance as set forth in Rule 1.8(e). Rule 1.7. Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Rule 8.1. Bar Admission and Disciplinary Matters 14
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) (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; 15