LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ANDREW CRAIG CHRISTENBERRY. NUMBER: 03-DB-052 c/w 05-DB-055

LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ANDREW CRAIG CHRISTENBERRY NUMBER: 03-DB-052 c/w 05-DB-055 AMENDED RECOMMENDATION TO THE LOUISIANA SUPREME COURT This is a disciplinary proceeding based upon the filing of two sets of formal charges against Andrew Craig Christenberry ( Respondent ) by the Office of Disciplinary Counsel ( ODC ). The first set of charges (03-DB-052), consists of one count alleging violations of Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c) and 8.4(c), and 8.4(g) 1 of the Rules of Professional Conduct. The second set of charges (05-DB-055) consists of two counts alleging violations of Rules 1.3, 8.1(c), 8.4(a), and 8.4(g). Although the charges were heard separately before different hearing committees, they have since been consolidated for purposes of rendering one recommendation to the Supreme Court. Hearing Committee No. 24, assigned to matter 03-DB-052, found that Respondent violated the Rules as charged and recommended that he be suspended for sixty (60) days, fully deferred. Hearing Committee No. 8, assigned to matter 05-DB-055, found only that Respondent violated Rules 1.3 and 8.4(a) and recommended that he be suspended for one year and one day, fully deferred, subject to a two year period of supervised probation to begin at the time Respondent again becomes eligible and resumes the practice of law in Louisiana. For the reasons set forth below, the Board adopts the findings and conclusions of Hearing Committee No. 24 in matter 03-DB-052 and Hearing Committee No. 8 in matter 05-DB-055. Furthermore, the Board recommends that Respondent be suspended from the practice of law for 1 The text for the Rules at issue is provided in the attached Appendix. 1

one year and one day with all but three months deferred, subject to a two-year period of supervised probation, which is sufficient to address his misconduct in both matters. PROCEDURAL HISTORY I. 03-DB-052 The first set of formal charges was filed by ODC on August 18, 2003 and assigned docket number 03-DB-052. The charges consisted of a single count alleging that Respondent neglected his obligation to defend his client on charges pending in New Orleans Municipal Court, failed to communicate with his client, and failed to return unearned fees. Specifically, Respondent was charged with violating Rule 1.3 (diligence); Rule 1.4 (communication); Rule 1.5 (fees); Rule 8.1(c) (failure to cooperate with ODC); Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(g) (except upon the expressed assertion of a constitutional privilege, to fail to cooperate with ODC in its investigation of alleged misconduct). The charges were served upon Respondent via certified mail at his primary and secondary registration addresses and were signed for by Respondent on August 25, 2003 and by Herbert W. Christenberry on August 26, 2003. On September 30, 2003, Respondent filed his answer to the formal charges. A formal hearing was set for December 15, 2003 before Hearing Committee No. 24 ( Committee or Committee No. 24 ). The hearing was held as scheduled and the parties entered into joint stipulations on December 15, 2003. Respondent admitted to the factual allegations contained in the formal charges as well as the Rule violations contained therein. The hearing proceeded on the issues of sanction and mitigation. 2

Committee No. 24 issued its report on August 11, 2004, finding that Respondent violated the Rules of Professional Conduct as charged and recommending that he be suspended from the practice of law for a period of sixty (60) days, fully deferred. ODC responded to the Committee s report by suggesting that an active probationary period be imposed. Respondent filed no objection. Oral argument in this matter was held before the Disciplinary Board on September 30, 2004. Deputy Disciplinary Counsel, Shana M. Broussard, appeared on behalf of ODC, and Respondent appeared pro se. The Board issued its recommendation on January 13, 2005, adopting the Committee s report with certain modifications and recommending that Respondent be suspended for a period of six months with three months deferred. On July 11, 2012, the Court issued an order remanding the matter to the Board for consolidation with 05-DB-055. II. 05-DB-055 ODC filed a second set of formal charges against Respondent on May 25, 2005. These charges were later amended on June 15, 2006. The charges consisted of one count alleging that Respondent failed to obtain an expungement of the record in a criminal proceeding as agreed upon and for which he had been paid a fee; failed to timely communicate with his client regarding the matter; and failed to return the unearned fee. Specifically, Respondent was charged with violating Rules 1.3 (diligence); 1.4 (communication); 1.5 (fees); 8.1(c) (failure to cooperate with ODC); 8.4(c) (dishonesty, fraud, deceit or misrepresentation); and 8.4(g) (except upon the expressed assertion of a constitutional privilege, to fail to cooperate with ODC in its investigation of alleged misconduct). Copies of the charges were sent via certified mail to Respondent at his primary and secondary registration addresses and signed for by Cindy 3

Christenberry on October 3, 2007. Respondent filed his answer to the formal charges on November 5, 2007. The matter was assigned to Hearing Committee No. 8 ( Committee or Committee No. 8 ), and a formal hearing was held on November 7, 2012. Deputy Disciplinary Counsel, Yolanda Cezar, appeared on behalf of ODC, and Respondent appeared and was represented by his counsel, Donald L. Hyatt II. The parties entered into joint stipulations, and Respondent admitted to the factual allegations contained in the formal charges as well as to violating Rules 1.3 and 8.4(a). Although the formal charges contained additional allegations of misconduct, ODC chose not to proceed on the other Rule violations with which Respondent was charged. Committee No. 8 issued its report on February 26, 2013, finding that Respondent violated Rules 1.3 and 8.1(a) of the Rules of Professional Conduct and recommending that he be suspended for one year and one day, fully deferred, subject to a two year period of supervised probation to begin at the time Respondent again becomes eligible and resumes the practice of law in Louisiana. On April 8, 2013, ODC filed a Notice of No Objection, indicating that it did not object to either the Committee s findings of fact or its sanction recommendation. III. Consolidation As previously stated, the Court issued an order on June 11, 2012, remanding In re: Christenberry 03-DB-052 to the Board for consolidation with In re: Christenberry 05-DB-055 and directing the Board to issue a single recommendation of discipline. The matters were thereafter consolidated and set for oral argument before Panel A of the Disciplinary Board on June 6, 2013. ODC filed its pre-argument brief on June 5, 2013, asserting that the baseline sanction for Respondent s misconduct in suspension and recommending a period of 4

suspension. 2 When the matter was called before the Board as scheduled on June 6, 2013, Ms. Cezar informed the Panel members that Respondent s counsel, Mr. Hyatt, was unable to be attend due to a family medical emergency. Ms. Cezar indicated that she had no objection to a continuance under the circumstances. Accordingly, the Panel Chair, Carl A. Butler, ordered that the matter be continued until July 18, 2013. A minute entry memorializing same was signed by Mr. Butler and filed into the record on June 13, 2013. Oral argument was held before Panel B of the Disciplinary Board on July 18, 2013. Ms. Cezar appeared on behalf of ODC and Respondent appeared pro se. I. 03-DB-052 FORMAL CHARGES The first set of formal charges, which was filed on August 18, 2003, reads in pertinent part as follows: COUNT I Norman Hansen was arrested on July 2, 2001 for public drunkenness/lewd conduct m the French Quarter. On the advice of a friend, Hansen contacted CHRISTENBERRY to represent him in this matter. They met the following week and CHRISTENBERRY assured Hansen that he would handle the matter, get his record expunged, and have his $800.00 bond money returned. CHRISTENBERRY informed Hansen that he would not have to appear in court on October 4, 2001 and that he would speak with the Judge and take of the matter. Hansen paid CHRISTENBERRY $500.00 to handle the entire matter for him. On the evening of October 4, 2001, CHRISTENBERRY called Hansen and told him that he had gone to court and had gotten the public drunkenness charge dropped and the lewd conduct charge expunged. He told Hansen he would get his expungement papers within a week and that after the court processed his bond money, the $800.00 would be mailed to Hansen. Thereafter, Hansen called CHRISTENBERRY several times without success to get the status of his matter. In February 2002, Hansen went to the 2 Although ODC cited a number of cases with sanctions ranging from fully-deferred to eighteen-month suspensions, it took no position on the length of the suspension. Rather, ODC simply argued for a period of actual suspension for Respondent s misconduct. 5

Clerk s office to check on the status of his matter. He discovered that CHRISTENBERRY did not appear on the court date and that his bond was forfeited. Hansen called CHRISTENBERRY several times afterwards. Finally, CHRISTENBERRY called him to tell him he would take care of the matter and would investigate it. However, CHRISTENBERRY has failed to rectify the situation and failed to refund the unearned fee. The Office of Disciplinary Counsel sent a certified letter dated July 11, 2002 to CHRISTENBERRY requesting that he respond to this complaint. Despite receiving same on July 17, 2002, CHRISTENBERRY failed to respond, which necessitated the Office of Disciplinary Counsel to issue a subpoena for his presence for a sworn statement. CHRISTENBERRY did not appear on September 4, 2002. However, he appeared on September 5, 2002 and brought a letter dated May 31, 2002 as his response to this complaint. CHRISTENBERRY s conduct violated Rules of Professional Conduct 1.3, 1.4, 1.5, 1.16(d), 8.1(c), 8.4(c) and 8.4(g). II. 05-DB-055 The second set of formal charges, which was filed on May 24, 2005, reads in pertinent part as follows: In December of 2001, William J. Blake was arrested in Orleans Parish for Possession of a Controlled Dangerous Substance. Blake retained CHRISTENBERRY to represent him in any criminal proceedings that may arise before Orleans Criminal District Court and if possible to obtain an expungement on his behalf. CHRISTENBERRY and Blake agreed upon a fee of $2,500 as a total cost for all services. Blake was admitted to the Orleans Parish District Attorney s diversionary program and the charges were dismissed by nolle prosequi on June 20, 2002. After completion of the diversionary program, Blake contacted CHRISTENBERRY and requested that he proceed with the expungement of Blake s criminal arrest. CHRISTENBERRY agreed to obtain the expungement only if Blake would pay the filing fee. Blake disputed the request for additional funds as the $2,500 he paid was to handle all matters. The receipt for the last installment payment stated that it included expungement. Despite the receipt and the client s understanding, CHRISTENBERRY neglected the client s matter when he failed to obtain an expungement for Blake in the years 2002 and 2003. In a May 21, 2004 communication with Disciplinary Counsel, CHRISTENBERRY agreed to prepare the expungement and pay the cost for filing fees. CHRISTENBERRY failed to provide evidence that he obtained an expungement for Blake. On January 21, 2004, the Office of Disciplinary counsel requested additional information from CHRISTENBERRY. He failed and/or refused to respond and the ODC was compelled to request a subpoena for his appearance for 6

his sworn statement. CHRISTENBERRY appeared pursuant to his subpoena on March 24, 2004. CHRISTENBERRY s conduct violated Rules 1.3, 8.1(c), 8.4(a), and 8.4(g) of the Rules of Professional Misconduct. REPORT OF HEARING COMMITTEE NO. 24 As noted above, Committee No. 24 issued its report in 03-DB-052 on December 11, 2004. On the day of the formal hearing, the parties entered into the following joint stipulations of fact and Rule violations: JOINT STIPULATIONS 1. Respondent was hired to represent Norman Hansen in July of 2001 on Municipal Court charges of Lewd Conduct and Public Drunkenness due to Complainant s arrest on July 2, 2001. 2. Respondent and Norman Hansen met approximately one week later at The Diner Restaurant in New Orleans, Louisiana. At the conclusion of the meeting, Respondent agreed to represent Mr. Hansen on both charges, in an attempt to have the charges dismissed, to file an expungement on behalf of Mr. Hansen as necessary, and have Mr. Hansen s $800.00 bond money returned. 3. During the initial meeting of Respondent and Mr. Hansen, Respondent informed Hansen that he would not need to appear in Court on October 4, 2001. Based on this information, Hansen informed Respondent he would not appear in court and the two would discuss court events that evening. 4. On the evening of October 4, 2001, Respondent and Hansen spoke. Respondent informed Hansen that the public drunkenness charges had been dropped and the lewd conduct charge had been expunged. Respondent informed Hansen that his expungement paperwork would be ready in one week, and after processing by the court, the bond money would be returned. 5. Respondent and Hansen scheduled a meeting one week later to deliver expungement paperwork in front of the Civil District Courthouse. Respondent failed to appear. 6. Hansen attempted to contact Respondent several times without any response. 7

7. In February of 2002, Hansen went to the Municipal Court Clerk s office to attempt to retrieve his bond money and expungement paperwork. Hansen discovered that Respondent had not appeared on October 4, 2001, that his charges were still active, and that his bond money had been forfeited. 8. Respondent admits that Hansen attempted to contact him numerous times without a response. 9. Norman Hansen filed an Ethical Conduct Complaint with the Office of Disciplinary Counsel on April 29, 2002. Respondent admits receiving said disciplinary complaint by certified mail request number 71969979749000028193. 10. Respondent failed to respond and a subpoena was issued for Respondent s appearance on September 4, 2002. Respondent admits that he received said subpoena by personal service on August 19, 2002. 11. Respondent admits he failed to appear on September 4, 2002. Respondent appeared on September 5, 2002 with a response to the complaint dated May 31, 2002. 12. Respondent corresponded to Norman Hansen by letter dated September 19, 2002 and admitted his failure to represent Hansen. Respondent offered to petition the court to reopen the final disposition of the charges and to refund Respondent s bond money. 13. Hansen accepted Respondent s offer. Respondent again failed to petition the court on behalf of Hansen. 14. Formal charges were filed on August 18, 2003. Respondent received the formal charges by certified mail. Respondent answered the charges on September 23, 2003. 15. After the filing of formal charges, Respondent filed a motion to set aside the bond forfeiture and had the municipal charges reset for trial on September 30, 2003. Respondent refunded the $500.00 attorney fee, and assisted Hansen in receiving a refund of the cash bond. 16. Respondent admits that from October 4, 2002 through August 2003 he failed to return the $500.00 attorney fee received by Respondent. 17. Respondent stipulates that his conduct in this matter represents lack of diligence in violation of Rule 1.3, lack of communication in violation of 1.4, fees in violation of 1.5(f)(6), declining or terminating representation in violation of Rule 1.16(d), failure to cooperate with the Office of 8

Disciplinary Counsel in violation of Rules 8.1(c) and 8.4(g), misconduct in violation of Rule 8.4(c). In addition, the Committee found as follows: FINDINGS AND CONCLUSIONS 1. Christenberry was retained to handle a criminal matter for Norman L. Hansen. He failed to handle the matter and failed to respond to reasonable requests for information and updates by his client. Respondent failed to keep his client advised of the status and progress of the case, failed to pursue the matter diligently and move the case forward. His conduct in this case has violated Rules 1.3, 1.4, 1.5 and 1.16(d) of the Rules of Professional Conduct. 2. In connection with the ODC s investigation of the complaint by Mr. Hansen, Christenberry initially failed or neglected to cooperate with the ODC. He failed to respond to a certified letter at his registered Rule XIX address. As a result of his failure to respond, Christenberry was subpoenaed to appear with his file and give a sworn statement regarding the case. He ultimately appeared and thereafter fully cooperated with the ODC. He further contacted his client and corrected the status of the criminal matter, paying all costs from his own funds and returning the entirety of the fee to the client. The client suffered no financial loss, nor did he suffer any criminal penalty as a result of Respondent s inaction. Respondent s conduct violated Rules 8.1(c) and 8.4(c) and (g) of the Rules of Professional Conduct. Once the Committee determined that Respondent had engaged in professional misconduct, it undertook consideration of certain factors set forth in Rule XIX, Section 10(c). As noted above, the Committee found that Respondent took remedial measures to minimize the actual harm to his client by correcting the status of his client s criminal matter, paying all necessary costs from his own funds, and returning the entirety of the fee paid by his client. Consequently, his client suffered no financial loss or criminal penalty as a result of Respondent s misconduct. Next, the Committee considered the existence of aggravating and mitigating factors. It determined that there were no aggravating factors supported by the record but several factors to be considered in mitigation. These included the fact that Respondent freely 9

and fully admitted his misconduct, rectified the situation by correcting the status of his client s matter, and was employed as a public defender with a heavy case load in Orleans Parish Juvenile Court which likely contributed to his misconduct in this matter. In determining the appropriate sanction, the Committee relied upon Standards 4.42 and 7.2 of the ABA Standards for Imposing Lawyer Sanction ( ABA Standards ). Standard 4.42 provides that suspension is generally appropriate when: (a) (b) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. Standard 7.2 indicates that [s]uspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system. Based on the ABA Standards and in light of the mitigating factors found to be present, Committee No. 24 recommended that Respondent be suspended for sixty (60) days, fully deferred, and assessed with costs and expenses for matter 03-DB-052. REPORT OF HEARING COMMITTEE NO. 8 As noted above, Committee No. 8 issued its report in 05-DB-055 on February 26, 2013. On the day of the formal hearing, the parties entered into the following stipulations of fact: JOINT STIPULATIONS OF FACT 1. Andrew Christenberry was born on September 26, 1957 and was admitted to the practice of law in the State of Louisiana on April 28, 1989. 2. Mr. Christenberry has prior discipline with sanctions pending in In re: Christenberry, 03-DB-052 (01/13/2005). Mr. Christenberry is currently ineligible to practice law in Louisiana as a result of his failure to comply with the requirements for reporting trust account and for Mandatory Continuing Legal Education. 10

3. On May 2, 2002, Mr. Christenberry received the final installment payment towards the $2,500 fee to represent Mr. William Blake in the matter entitled State v. William Blake No. 428-492, Sec. C, Orleans Parish Criminal District Court. Mr. Blake was arrested in December 2001 for possession of a controlled dangerous substance. At the conclusion of the criminal proceedings, Mr. Christenberry was expected to obtain an expungement of Mr. Blake s criminal record. 4. Mr. Blake was admitted to the diversion program conducted by the Orleans Parish District Attorney s Office and the charges were dismissed by nolle prosequi on June 20, 2002. 5. Upon completion of the program, Mr. Blake contacted Mr. Christenberry and requested that he proceed with the expungement of his criminal record. 6. Mr. Christenberry agreed to obtain the expungement upon receipt of additional funds to cover the fee for filing the expungement. Mr. Blake disputed the request for additional funds arguing that it was his understanding that the $2,500 fee paid to Mr. Christenberry covered all fees associated with the representation. 7. Despite Mr. Blake s receipt indicating payment in full for services and his understanding that the payment was for all services associated with obtaining an expungement, Mr. Christenberry failed and/or refused to pursue an expungement for Mr. Blake during the years 2002 and 2003. Mr. Blake filed an ethical complaint with ODC on December 9, 2003. 8. In July 2005, Mr. Christenberry prepared and obtained an order of expungement for Mr. Blake. Additionally, the Committee made various factual findings as follows: FINDINGS OF FACT Mr. Christenberry was admitted to the practice of law in 1989 and has substantial experience in the practice of law.[fn1] Mr. Christenberry has prior discipline with sanctions pending in In re: Christenberry, 03-DB-052 (01/13/2005) and is currently ineligible to practice law in Louisiana as a result of his failure to comply with requirements for Mandatory Continuing Legal Education and trust account reporting.[fn2] In May 2002, Mr. Christenberry was retained and paid by Mr. William Blake to represent Mr. Blake in his criminal matter. Their agreement included obtaining an expungement as part of the original fee of $2500, as documented by the receipt signed by Mr. Christenberry.[FN3] Despite numerous requests by Mr. Blake to obtain the expungement during 2002 through 2005, Mr. Christenberry did not adequately respond to his client s inquiries, did not promptly address the financial issue in dispute and failed to pursue the matter diligently.[fn4] 11

While Mr. Christenberry ultimately did obtain the expungement and refund payments, he did not do so until years later in July 2005, after a complaint was made by Mr. Blake and formal charges were filed by ODC in May 2005.[FN5] FN1 Hearing Transcript, p. 7 FN2 Hearing Transcript, p. 7 FN3 Exhibit ODC-1(g) FN4 Hearing Transcript, pp. 24-25 FN5 Exhibit ODC-1(i) Based upon these stipulations and findings, the Committee determined that Respondent violated Rules 1.3 and 8.4(a) of the Rules of Professional Conduct. 3 The Committee determined that Respondent acted knowingly and caused actual harm when he violated his duties to his clients, the public, the legal system, and the profession. In determining the appropriate sanction, the Committee relied upon Standards 4.42 and 7.2 of the ABA s Standards for Imposing Lawyer Sanction. Standard 4.2 provides that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or engages in a pattern of neglect and causes injury or potential injury to a client. Standard 7.2 indicates that suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal profession. Once the Committee determined the baseline sanction for Respondent s misconduct was suspension, it applied the following aggravating factors: 1) prior disciplinary offenses; 2) failure to cooperate with ODC during its investigation; and 3) substantial experience in the practice of law. No mitigating factors were found to be present. 3 Respondent stipulated to violating Rules 1.3 and 8.4(a). ODC chose not to pursue the additional Rule violations contained in the formal charges, and the Committee did not draw any conclusions regarding same. 12

After considering Respondent s misconduct in light of the ABA standards, the aggravating factors found to exist, and the applicable jurisprudence, 4 the Committee recommended that Respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of supervised probation to begin at the time Respondent again becomes eligible and resumes the practice of law in Louisiana. 5 ANALYSIS I. The Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. 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 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 (1/22/1992). A. Manifest Error Inquiry Both Committees were correct in accepting the facts as stipulated by the parties. Moreover, the Committees additional findings of fact are not manifestly erroneous. 4 The Committee cited In re Kurzweg, 03-2902 (La. 4/2/04), 870 So.2d 978; In re Blanson, 01-3048 (La. 2/22/02), 809 So.2d 126; In re Bonnette, 01-1401 (La. 6/29/01), 791 So.2d 68; In re Walter Keller, Jr., (La. 4/1/05), 898 So.2d 319; In re Patricia A. Givens Dean, 2003-2478 (La. 1/21/2004), 864 So.2d 152; In re Harry E. Cantrell, Jr., 2003-B-0910 (La. 5/2/2003), 848 So.2d 507; In re Beauchamp, 02-1389 (La. 6/13/02), 821 So.2d 1281; and In re Phelps, 2002-1837 (La. 9/30/02), 827 So.2d 1140. 5 Respondent is currently eligible to practice law. 13

B. De Novo review Hearing Committee No. 24 correctly concluded that Respondent violated the Rules of Professional Conduct as charged, since Respondent s stipulations to the alleged misconduct and the Rule violations must be deemed conclusive. The Court has held that parties in disciplinary proceedings can freely enter into stipulations regarding rule violations, and that effect must be given to such stipulations unless they are withdrawn. In re Gerard N. Torry, 2010-B-0837 (10/19/10), 48 So.3d 1038. Similarly, Hearing Committee No. 8 was correct in concluding that Respondent violated Rules 1.3 and 8.4(a), since he stipulated to those Rule violations. Although the formal charges contained additional allegations of misconduct, ODC chose not to pursue the additional Rule violations, and the Committee did not discuss them in its report. Therefore, the only issue left for the Board to consider is the sanction most appropriate for Respondent s total misconduct in both matters. II. The Appropriate Sanction A. Application of Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, 10(C) states that in 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 clearly violated duties owed to his clients, the public, the legal system, and the profession. He acted knowingly, if not intentionally, and his misconduct resulted in actual injury to his clients, the public, and the legal system. First, Respondent violated a duty 14

owed to his clients by failing to provide them with competent representation, failing to act with diligence and promptness in their representation, failing to keep them reasonably informed regarding their cases, and failing to properly account for or return unearned fees. Respondent also violated a duty to the profession by refusing to cooperate with ODC s investigation. The profession has the legitimate expectation that all persons admitted to the bar will cooperate with the disciplinary process, and Respondent did not. With respect to aggravating and mitigating factors, the following aggravating factors are supported by the record: 1) prior disciplinary offense; 2) a pattern of misconduct; 3) bad faith obstruction of the disciplinary proceeding by intentionally failing to cooperate with rules or orders of the disciplinary process; 4) vulnerability of victim; and 5) substantial experience in the practice of law. There are no mitigating factors supported by the record. B. The ABA Standards and Case Law The ABA s Standards for Imposing Lawyer Sanction suggest that suspension is the baseline sanction for the misconduct in this matter. Standard 4.2 provides that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or engages in a pattern of neglect and causes injury or potential injury to a client. Standard 7.2 indicates that suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal profession. Committee No. 24 recommended that Respondent be suspended for sixty (60) days, fully deferred, for his misconduct in 03-DB-052. Committee No. 8 recommended that Respondent be suspended for one year and one day, fully deferred, subject to a two year period of supervised probation for his misconduct in 05-DB-055. It should be noted that ODC filed a Notice of No 15

Objection indicating that it did not object to the Committee s findings of fact or sanction recommendation. A review of the applicable case law reveals that the Court has imposed sanctions ranging from fully-deferred suspensions to six-month suspensions for similar misconduct. For example, in In re Givens Dean, 2003-2478 (La. 1/21/2004), 864 So.2d 152, the Court suspended the respondent for one year, fully deferred, subject to a one-year period of probation for various acts of misconduct including incompetent representation, neglecting client matters, and failing to communicate. The Court reasoned that the sanction was intended to protect the public while giving the respondent an opportunity to correct the problems which resulted in the misconduct. Similarly, in In re Phelps, 2002-1837 (La. 9/30/02), 827 So.2d 1140, the respondent was suspended for one year and one day, fully deferred, with a twenty-four month period of supervised probation for seven acts of neglecting client matters and failing to communicate with clients. The Court found multiple aggravating factors including prior disciplinary record, a pattern of misconduct, and vulnerability of victims; and several mitigating factors including inexperience in the practice of law and remorse. The Court noted that the baseline sanction was suspension; however, the misconduct was a result of poor office management skills rather than any dishonest or selfish motive. The sanction imposed by the Court was designed to afford the respondent an opportunity to correct the problems that caused the misconduct while protecting the public from potential future misconduct. In In re Renfroe, 01-1947 (La. 11/9/01), 8000 So.2d 371, the Court found that the respondent knowingly and intentionally neglected her client s case, failed to communicate with her client, and failed to account for and return the unearned fee. Thereafter, she failed to 16

cooperate with the ODC during the investigation. The Court suspended the respondent from the practice of law for a period of six months, fully deferred, and ordered her to make restitution to her client. In the matter of In re Yates, 04-006 (La. 3/10/06), 923 So.2d 618, the Court suspended the respondent from the practice of law for six months with a one-year period of supervised probation for two counts of misconduct involving neglect, failure to communicate, and failure to return unearned fees. Based on the cases highlighted above, the Board recommends that Respondent be suspended from the practice of law for one year and one day with all but three months, subject to a two year period of supervised probation. CONCLUSION The Board adopts the factual findings and legal conclusions of Committee No. 24 with respect to 03-DB-052 and Committee No. 8 with respect to 05-DB-055. Furthermore, the Board recommends that Respondent be suspended from the practice of law for one year and one day with all but three months deferred, subject to a two year period of supervised probation, which is also sufficient to address Respondent s previous misconduct in 03-DB-052. Finally, the Board recommends that Respondent be assessed with all costs and expenses of these proceedings in accordance with Rule XIX, 10.1(A). 17

RECOMMENDATION The Board recommends that Respondent, Andrew Craig Christenberry, be suspended from the practice of law for one year and one day with all but three months deferred, subject to a two year period of supervised probation. Additionally, the Board recommends that he be assessed with all costs and expenses of these proceedings in accordance with Rule XIX, lo.l(a). LOUISIANA ATTORNEY DISCIPLINARY BOARD Carl A. Butler Stephen F. Chiccarelli George L. Crain, Jr. Tara L. Mason Edwin G. Preis, Jr. R. Lewis Smith, Jr. Linda P. Spain R. Steven Tew BY: ~~.. amie E. Fontenot OR THE ADJUDICATIVE COMMITTEE 18

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) (c) 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. 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 1.5 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 acceptance of the particular employment will preclude other employment by the lawyer; 19

(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 performing the services; and (8) whether the fee is fixed or contingent. (b) (c) (d) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client. A copy or duplicate original of the executed agreement shall be given to the client at the time of execution of the agreement. The contingency fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; the litigation and other expenses that are to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. 20

(e) A division of fee between lawyers who are not in the same firm may be made only if: (1) the client agrees in writing to the representation by all of the lawyers involved, and is advised in writing as to the share of the fee that each lawyer will receive; (2) the total fee is reasonable; and (3) each lawyer renders meaningful legal services for the client in the matter. (f) Payment of fees in advance of services shall be subject to the following rules: (3) When the client pays the lawyer an advance deposit against fees which are to accrue in the future on an hourly or other agreed basis, the funds remain the property of the client and must be placed in the lawyer s trust account. The lawyer may transfer these funds as fees are earned from the trust account to the operating account, without further authorization from the client for each transfer, but must render a periodic accounting for these funds as is reasonable under the circumstances. (4) When the client pays the lawyer an advance deposit to be used for costs and expenses, the funds remain the property of the client and must be placed in the lawyer s trust account. The lawyer may expend these funds as costs and expenses accrue, without further authorization from the client for each expenditure, but must render a periodic accounting for these funds as is reasonable under the circumstances. (5) When the client pays the lawyer a fixed fee, a minimum fee or a fee drawn from an advance 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 a mediation or arbitration, including arbitration with the Louisiana State Bar Association Fee Dispute Program. 21

Rule 1.16 Declining or Terminating Representation (in pertinent part) (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 (in pertinent part) 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 (in pertinent part) It is professional misconduct for a lawyer to: (a) * * * (c) * * * (g) Violate the rule 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[.] Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; Threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter. 22