ORIGINAL 15-DB-012 4/1/2016 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: RANDY J. UNGAR NUMBER: 15-DB-012 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION AND PROCEDURAL HISTORY This petition and application for reinstatement ( petition for reinstatement or petition ) was filed by Randy J. Ungar ( Petitioner or Mr. Ungar ) on April 6, 2015. The Petitioner was suspended from the practice of law on October 30, 2009 for violations of Rules 1.2(a) (client has ultimate authority during representation), 1.2(b) (limiting scope of representation permissible if reasonable and client consents), 1.3 (diligence), 1.4 (communication), 1.5(a) (unreasonable fee), 1.5(c) (settlement statement upon recovery), 1.8(a), 1.8(g), 1.8(j), 1.8(k) (conflict of interest rules) and 8.4(a) (violate or attempt to violate the Rules of Professional Conduct) and 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) of the Louisiana Rules of Professional Conduct. See In re Ungar, 2009-0573 (La. 10/30/09); 25 So.3d 101. The Court held that [w]hile the underlying facts of this case are very complex, the crux of the misconduct alleged by the ODC is that [Mr. Ungar] intentionally withheld information from his clients regarding [a settlement] in order to facilitate collection of an excessive fee. Id. at 110. Although Mr. Ungar ultimately declined to collect any fee in the underlying case, his attempt to collect the excessive fee resulted in a three-year suspension from the practice of law. Id. at 111. Three of the Supreme Court Justices who heard this matter disagreed with the imposition of a three-year suspension. Two opined that disbarment should be imposed and one opined that 1
disbarment was the baseline sanction and that we should be debating whether permanent disbarment is merited. Id. at 111-13. In May of 2012, Mr. Ungar petitioned the Court for reinstatement to the practice of law pursuant to Louisiana Supreme Court Rule XIX, Section 24. Ultimately, the Louisiana Supreme Court, in a 4-3 decision issued on April 5, 2013, denied Mr. Ungar s petition for reinstatement and directed that he not reapply for reinstatement until at least two years had passed from the date of this judgment. See In re Ungar, 2013-0521 (La. 4/5/13); 110 So. 3d 1080. The petition now before the Disciplinary Board constitutes the second petition for reinstatement filed by Mr. Ungar. The Office of Disciplinary Counsel ( ODC ) filed an opposition to the petition on July 6, 2015. Petitioner s prehearing memorandum in support of his petition for reinstatement was filed on August 31, 2015. ODC s prehearing memorandum was filed on August 28, 2015. The hearing on Mr. Ungar s petition was held on September 11, 2015 before Hearing Committee No. 24. After considering the testimony and the exhibits presented at the hearing, the committee unanimously recommended that Mr. Ungar be reinstated to the practice of law. See In re Ungar, No. 15-DB-012, Report of Hearing Committee No. 24 dated November 30, 2015. 1 ODC filed an Objection to the Report of the Hearing Committee #24 on December 29, 2015 and a Brief to the Disciplinary Board on January 29, 2016 in which it argues that Mr. Ungar s petition should be rejected. 2 The Petitioner filed a Board Brief In 1 Members of the hearing committee included Mary L. Dumestre, Chair, Jamie Crow Waters, lawyer member, and Shawn Clancy Lee, public member. 2 ODC asserts in its Objection to the Report of the Hearing Committee #24 that the hearing committee committed three errors in its report. First, ODC maintains that the hearing committee erred in finding that Petitioner s deception of his clients to gain a financial benefit was outweighed by evidence of his honesty and integrity to practice law as reflected in sworn affidavits of his friends and associates. (Assignment of Error No. 1). Next, ODC alleges that the committee erred in recommending Petitioner s readmission in view of evidence contained in the record that Petitioner filed knowingly false affidavits in his prior readmission proceeding. (Assignment of Error No. 2). Finally, ODC maintains that the hearing committee erred in recommending Petitioner s readmission in view of evidence in the record that Petitioner refused to unconditionally recognize the wrongfulness and seriousness of his misconduct in his prior readmission proceeding. (Assignment of Error No. 3). 2
Support of Petition for Reinstatement on February 4, 2016. Oral argument in this matter was held before Panel B of the Disciplinary Board on February 25, 2016. 3 Deputy Disciplinary Counsel Robert S. Kennedy, Jr. appeared on behalf of ODC. The Petitioner and his attorney, Dane S. Ciolino, also appeared at the hearing. I. The Reinstatement Criteria DISCUSSION A suspended lawyer petitioning for reinstatement to practice law must satisfy the procedural requirements outlined in Rule XIX, Section 24 (A-D). Further, the lawyer must satisfy all the criteria detailed in Rule XIX, Section 24(E). The lawyer has the burden of demonstrating by clear and convincing evidence that he or she has met each of the criteria in subparagraph E or, if not, that there is good and sufficient reason why the lawyer should nevertheless be reinstated or readmitted. Rule XIX, Section 24(E) and (G); Section 18(C). Rule XIX, Section 24 reads, in pertinent part: A. Generally. [A] suspended lawyer who has served a suspension period of more than one year, exclusive of any waivers or periods of deferral, shall be reinstated only upon order of the court. No lawyer may petition for reinstatement until six months before the period of suspension has expired. B. Petition and Application. A petition for reinstatement or readmission must be under oath or affirmation under penalty of perjury and shall specify with particularity the manner in which the lawyer meets each of the criteria specified in paragraph E or, if not, why there is good and sufficient reason for reinstatement or readmission An application for reinstatement or readmission, also drafted under In its Brief to the Disciplinary Board, ODC argues only that it objects to the factual finding of Hearing Committee No. 24 that Petitioner met his burden of proof to a clear and convincing degree that he possesses the requisite honesty and integrity to practice law in accordance with Rule XIX, Section 24(6), apparently abandoning Assignments of Error 2 and 3 above. ODC also argues in its brief that the committee chair erred in refusing to allow ODC to admit into evidence a copy of the original hearing committee opinion in the underlying disciplinary matter. See In re Ungar, No. 06-DB-073, Report of Hearing Committee No. 33 dated July 18, 2008. ODC submits that the chair s decision skewed the committee s fact finding by refusing to consider countervailing evidence bearing on Mr. Ungar s honesty and integrity. 3 The Disciplinary Board members who sat on this panel were Linda G. Bizzarro, Chair, Dominick Scandurro, Jr., lawyer member, and Evans C. Spiceland, Jr., public member. 3
oath or affirmation under penalty of perjury, shall also be submitted by the lawyer. C. Service of Petition and Application. The lawyer shall file the petition and application with the disciplinary board and shall serve a copy of the petition and application (Parts I and II) on disciplinary counsel. D. Publication of Notice of Petition and Application. At the same time that a lawyer files a petition and application for reinstatement or readmission, the lawyer shall also publish a notice of the petition and application in the journal of the state bar and in a newspaper of general circulation in each judicial district in which the lawyer maintained an office for the practice of law when the lawyer was suspended or disbarred. The notice shall inform members of the bar and the public about the petition and application for reinstatement or readmission, and shall request that any individuals file notice of their opposition or concurrence with the board within thirty days. In addition, the lawyer shall notify the complainant(s) in the disciplinary proceeding that led to the lawyer s suspension or disbarment that the lawyer is applying for reinstatement or readmission, and shall inform each complainant that he or she has thirty days to raise objections to or to support the lawyer s petition and application. E. Criteria for Reinstatement and Readmission. A lawyer may be reinstated or readmitted only if the lawyer meets each of the following criteria, and executes and files with the petition for reinstatement or readmission an application for reinstatement or readmission, a copy of which can be obtained from the board administrator, or, if not, presents good and sufficient reasons why the lawyer should nevertheless be reinstated or readmitted: (1) The lawyer has fully complied with the terms and conditions of all prior disciplinary orders except to the extent that they are abated under Section 25. (2) The lawyer has not engaged nor attempted to engage in the unauthorized practice of law during the period of suspension or disbarment. (3) If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer's misconduct, the lawyer shall not be reinstated or readmitted unless: (a) the lawyer has pursued appropriate rehabilitative treatment; (b) the lawyer has abstained from the use of alcohol or other drugs for at least one year; and (c) the lawyer is likely to continue to abstain from alcohol or other drugs. (4) The lawyer recognizes the wrongfulness and seriousness of the misconduct for which the lawyer was suspended or disbarred. (5) The lawyer has not engaged in any other professional misconduct since suspension or disbarment. (6) Notwithstanding the conduct for which the lawyer was disciplined, the lawyer has the requisite honesty and integrity to practice law. (7) The lawyer has kept informed about recent developments in the law and is competent to practice and has satisfied MCLE requirements for the year of reinstatement or readmission. 4
(8) The lawyer has paid to the Louisiana State Bar Association currently owed bar dues. (9) The lawyer has paid all filing fees owed to the Clerk of Court and all disciplinary costs to the Disciplinary Board. (10) The lawyer has paid to the Disciplinary Board currently owed disciplinary administration and enforcement fees required under Section 8(A) of this rule and has filed the registration statement required under Section 8(C) of this rule. (11) The lawyer shall obtain a certification from the Client Assistance Fund that no payments have been made by the Fund to any of the lawyer s clients. To the extent that Client Assistance Funds have been paid to qualifying clients, the lawyer shall obtain a certification from the Fund that the Fund has been reimbursed in its entirety, or alternatively, that a payment plan is in effect which will result in reimbursement to the Fund. The hearing committee found that Mr. Ungar had satisfied all requisites for reinstatement by clear and convincing evidence and recommended that Mr. Ungar s petition for reinstatement be granted. Mr. Ungar does not dispute the committee s findings. As noted above, however, ODC maintains that the sixth criterion was not properly proven by Mr. Ungar. Therefore, the primary focus of the Board s analysis is whether Mr. Ungar has proven by clear and convincing evidence that, notwithstanding the conduct for which he was disciplined, he has the requisite honesty and integrity to practice law. II. The Standard of Review The powers and duties of the Disciplinary Board are defined in Section 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Rule XIX, Section 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. 5
1989). The Board conducts a de novo review of the hearing committee s legal determination as well as its application of the Rules of Professional Conduct and/or Louisiana Supreme Court Rule XIX. In re Hill, 90-DB-004, Recommendation of the Board (1/22/91). III. Analysis a. Whether the Hearing Committee Erred in Denying ODC s Request to Enter the Hearing Committee s Report in the underlying disciplinary matter of In re Ungar, No. 06-DB-073. ODC contends that the committee erred when it refused to admit as an exhibit the July 17, 2008 hearing committee report in case number 06-DB-073 ( the 06-DB-073 hearing committee report ) which recommended that Mr. Ungar receive a two-year suspension for his underlying discipline. See In re Ungar, No. 06-DB-073, Report of Hearing Committee No. 33 dated July 18, 2008. ODC argues that, without reviewing this report, important countervailing evidence bearing on Mr. Ungar s honesty and integrity was not before the committee. ODC further argues that consideration of this countervailing evidence involving Mr. Ungar s underlying misconduct, particularly that involving dishonesty and deceit, is integral to determining whether notwithstanding that misconduct, [Mr. Ungar] has satisfied his burden of proving that he... nonetheless possesses the requisite honesty and integrity to practice law. See ODC s Brief to the Disciplinary Board, p. 1. The Board rejects ODC s argument that the hearing committee chair erred in denying ODC s request to admit the 06-DB-073 hearing committee report into evidence. First, the Board notes that the hearing committee did in fact consider the past misconduct committed by Mr. Ungar that led to his suspension. At the hearing, members of the hearing committee asked detailed questions about Mr. Ungar s prior misconduct. The committee chair extensively probed Mr. Ungar about his past misconduct over the course of fifteen pages of transcript. See Hearing 6
Committee Tr., pp. 57-72. During that questioning, counsel for Mr. Ungar and for ODC provided additional information about that past misconduct. Id. Finally, the committee also admitted into evidence the Supreme Court s October 30, 2009 opinion suspending Mr. Ungar. 4 See ODC Exhibit 1. That opinion describes in detail the nature of Mr. Ungar s misconduct. ODC also cross-examined Mr. Ungar about the facts described in the decision. See Hearing Committee Tr., pp. 47-51. Second, as a procedural matter, ODC never indicated that it would introduce the 06-DB- 073 hearing committee report as an exhibit until after the hearing began. See Petitioner s Exhibit 7, ODC Prehearing Memorandum at pp. 1-2 (which was filed August 28, 2015 and which did not list the 06-DB-073 hearing committee report as an exhibit). Hearing Committee Tr., pp. 7-11. While the committee chair certainly had the discretion to admit the report or to take judicial notice of the report 5 over the objection of the Petitioner, she chose not to do so. Such action is clearly within the chair s discretion and was not erroneous, particularly since the Supreme Court s October 30, 2009 opinion in Mr. Ungar s underlying disciplinary matter was admitted into evidence and since the committee and ODC extensively explored Mr. Ungar s underlying misconduct at the hearing. Given the above, and after a de novo review of this issue, the Board finds that the hearing committee chair did not err in refusing to admit the 06-DB-073 hearing committee report into evidence. b. Whether the Petitioner Has Carried His Burden of Proof by Clear and Convincing Evidence in this Matter 4 ODC Exhibit 1 is the Supreme Court s opinion in In re Ungar, 2009-0573 (La. 10/30/09); 25 So.3d 101 which addresses the hearing committee s report and the Disciplinary Board s recommendation in case number 06-DB-073. 5 See In re Salat, No. 07-DB-010, Board Recommendation to the Louisiana Supreme Court dated May 16, 2008, p. 6, fn. 16 (in determining whether a petition for readmission should be granted, the Disciplinary Board took judicial notice of a hearing committee report in a prior readmission proceeding of the petitioner, finding the report to be a matter of public record and pertinent to the proceeding before it.) 7
The Board finds that Mr. Ungar fulfilled the preliminary requirements of readmission contained in Section 24(A-C). He further followed the directive of the Court s order in In re Ungar, 2013-0521 (La. 4/5/13); 110 So. 3d 1080, which denied his first petition for reinstatement and instructed that he not reapply for reinstatement until at least two years had passed from the date of the judgment. The Board further finds that the hearing committee correctly concluded that Mr. Ungar fulfilled the preliminary requirements of readmission contained in Section 24(D). As discussed above, the hearing committee found that Mr. Ungar had satisfied all criteria of Section 24(E) by clear and convincing evidence. In reviewing this determination, the Board is mindful of the Court s direction that the Board must adopt a hearing committee s factual findings unless those findings were manifestly erroneous or clearly wrong. See Rule XIX, Section 11(F)(1); In re Joiner, 2015-0959 (La. 12/8/15); 2015 WL 8225728; So.3d. In cases that involve credibility evaluations, the Board and the Supreme Court generally defer to the factual findings of the hearing committee members who act as the eyes and ears of [the] Court. In re Sledge, 2003-1148 (La. 10/21/03); 859 So.2d 671, 679 (citing In re Bolton, 2002-0257 (La. 6/21/02); 820 So.2d 548). This is so because the hearing committee has the benefit of actually seeing and hearing these witnesses to determine whether the witnesses testimony is credible. In re O Keefe, 2003-3195 (La. 7/2/04); 877 So.2d 79, 87; In re Williams-Bensaadat, 2015-1535 (La. 11/6/15); 181 So.3d 684. ODC has objected to the committee s finding that Criterion (6) of Section 24(E) was proven by clear and convincing evidence by the Petitioner. This criterion requires that a petitioner prove, by clear and convincing evidence, that, notwithstanding the conduct for which the lawyer was disciplined, the lawyer has the requisite honesty and integrity to practice law. In 8
his effort to establish this criterion, Petitioner presented letters of reference in support of his petition for reinstatement. The letters, admitted into evidence without objection, were from various members of the legal and medical community of the New Orleans metropolitan area. 6 See Hearing Committee Tr., pp. 32-36; Petitioner s Exhibit 12. The Petitioner also testified concerning these letters, generally explaining his relationship to the authors and how they are familiar with his character. The committee noted that there was no evidence presented by ODC to contradict the Petitioner s testimony concerning these letters or the letters themselves. Based upon this, the Committee determined that Mr. Ungar had satisfied this requirement for reinstatement. In re Ungar, 15-DB-012, Report of Hearing Committee No. 24 dated November 30, 2015, pp. 6-7. After a careful review of the record, the Board finds that the hearing committee s determination concerning Criterion (6) was based on factual findings that the Petitioner has the requisite honesty and integrity to practice law, and that these findings are not manifestly erroneous. In making this determination, the committee briefly stated: Entered into evidence as Exhibit P12, in globo, are letters from nine respected members of the legal and medical community, extolling Mr. Ungar s requisite honesty and integrity to practice law. See also Hearing Transcript, pp. 33, ll. 1-25; 34, ll.1-25; 35, ll. 1-25; 36, ll. 1-10 (Testimony regarding the authors of the letters). No evidence was presented to contradict this testimony and evidence. The Committee finds that Mr. Ungar satisfied this requirement for reinstatement. In re Ungar, 15-DB-012, Report of Hearing Committee No. 24 filed on November 30, 2015, pp. 6-7. 6 Mr. Ungar s character witnesses included: Philip F. Cossich, Jr.; Timothy B. Francis; Kenneth A. Weiss; William P. Coleman, III, M.D.; Robert M. Johnston; David R. Silvers, M.D.; Terrence J. Lestelle; Thomas J. Grace; and Allan Berger. 9
The Board is likewise impressed by the letters submitted by the nine individuals in support of Mr. Ungar. After reviewing the letters, the Board believes that these individuals submitted these letters because they sincerely believe that Mr. Ungar has the resolve to practice law in an honest and forthright manner should he be reinstated. Further, the Board adopts the hearing committee s finding that Mr. Ungar s testimony at the hearing concerning these letters, his relationship with the authors, and how the authors were familiar with his character, was credible. See Hearing Committee Tr., pp. 32-36. The committee s findings that the letters extolled Mr. Ungar s honesty and integrity to practice law and that they were supported by Mr. Ungar s testimony are not manifestly erroneous. The Board also finds that Mr. Ungar s testimony as to whether he has the honesty and integrity to practice law was credible. In response to a question asked by his counsel, he testified as follows: Q: I know it s an odd question to ask you, but do you believe you have the requisite character and fitness to practice law? A: I know I do. Hearing Committee Tr., p. 36. In arguing its objection, ODC urges the Board to consider Mr. Ungar s underlying disciplinary matter in weighing the evidence on this issue. 7 As to this argument, the Board notes that Criterion (6) requires that the Board determine if the Petitioner has the requisite honesty and integrity to practice law, notwithstanding the conduct for which he was disciplined. The Board is mindful that an understanding of the underlying misconduct is necessary in any reinstatement 7 As noted Section a. above, ODC sought to have the 06-DB-073 hearing committee report introduced into evidence and considered by the hearing committee and Board on this issue. Even without the report in evidence, ODC s argument remains that Mr. Ungar s underlying misconduct should be considered by the Board as to Criterion (6). In that vein, ODC Exhibit 1,which is the Court s opinion in In re Ungar, 2009-0573 (La. 10/30/09); 25 So.3d 101, and Mr. Ungar s testimony at the hearing concerning his misconduct are relevant to ODC s argument. 10
proceeding. However, the language of this criterion dictates that the Board not place undue emphasis on Petitioner s underlying misconduct in making its determination as to whether he has proven Criterion (6) by clear and convincing evidence. ODC has failed to produce any evidence which shows that Mr. Ungar has engaged in dishonest or deceitful conduct since the time of his underlying misconduct, and consequently, the Board finds that ODC s objection to the hearing committee s determination on this issue must fail. Finally, the Board finds as significant the fact that Mr. Ungar s underlying misconduct resulted in a three-year suspension from the practice of law, not permanent disbarment. He has now been suspended from the practice of law for almost six and one-half years. 8 He has served his three-year suspension as imposed by the Court in his underlying disciplinary matter, and he has previously attempted to be reinstated to the practice of law. As directed by the Court, he waited two years from the date of the order denying his first reinstatement petition to file this second petition. 9 Having now met the criteria for reinstatement, the Board respectfully submits that Mr. Ungar should be allowed to re-enter the practice of law. The hearing committee s recommendation that Mr. Ungar s petition for reinstatement be granted is therefore adopted by the Board. CONCLUSION The Board adopts the findings and conclusions of the hearing committee and finds that the Petitioner has satisfied all necessary requirements for reinstatement found in Rule XIX, Section 24. The Board recommends that the Petitioner s petition and application for reinstatement be granted. 8 See In re Ungar, 2009-0573 (La. 10/30/09); 25 So.3d 101. 9 See In re Ungar, 2013-0521 (La. 4/5/13); 110 So.3d 1080. In this matter, when denying Mr. Ungar s first petition for reinstatement, the Court directed that Petitioner may not reapply for reinstatement until at least two years have passed from the date of this judgment. Supreme Court Rule XIX, Section 24(I). 11
RECOMMENDATION The Board recommends that the petition and application for remstatement filed by Randy J. Ungar be granted. LOUISIANA ATTORNEY DISCIPLINARY BOARD Laura B. Hennen Carrie L. Jones R. Louis Smith, Jr. Melissa L. Theriot Charles H. Williamson, Jr. Linda G. Bizzarro-Dissents with reasons. Evans C. Spiceland, Jr.-Dissents with reasons. Walter D. White-Dissents with reasons. 12
LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: RANDY J. UNGAR NUMBER: 15-DB-012 DISSENT I concur in part and dissent in part. I concur with the majority that the Hearing Committee Chair did not err in refusing to admit the report of the hearing committee in the underlying disciplinary matter. The Petitioner s misconduct was well documented in the Supreme Court s opinion suspending him, which was admitted into evidence. The Hearing Committee s familiarity with the details was apparent by the depth of their questioning and cross examination of the Petitioner on the facts of the underlying misconduct and earlier proceedings. I dissent from the majority s finding that the Petitioner has satisfied all the necessary requirements for reinstatement found in Rule XIX, Section 24. Specifically, Petitioner failed to carry his burden of proof by clear and convincing evidence that he has satisfied Section 24(E)(6). Rule XIX Section 24(E),(1) through (11) lists all the criteria that must be satisfied by a lawyer petitioning for reinstatement to practice law. Section 24 (E), (1), (2),(3) and (5),(7),(8),(9),(10) and (11) are all essential but demand a minimum of proof. In summary they require a petitioner to prove that he has not engaged in further misconduct, that he does not have a drug or alcohol problem, that he has paid all his fines and dues, and that he has completed all his MCLE requirements. These elements are an essential but somewhat perfunctory part of the showing that a petitioner must make to a hearing committee for their consideration. Section 24 (E), (4) and (6) however, are unquestionably more difficult for a petitioner to prove, but he must do so, and he has the burden of doing so by clear and convincing evidence. They are also, arguably, the most crucial and important issues for a reviewing body, tasked with protecting the public, to consider and assess before recommending that a lawyer be allowed to resume the practice of law. 13
Section 24 (E)(4) states : The lawyer recognizes the wrongfulness and seriousness of the misconduct for which he was suspended or disbarred. Section 24 (E)(6) states: Notwithstanding the conduct for which the lawyer was disciplined, the lawyer has the requisite honesty and integrity to practice law. The Hearing Committee in this matter was quite thorough in determining that the criteria outlined in Section 24(E)(1) through (3), (5), and (7) through (11) were satisfied by Petitioner. They accepted evidence that the Petitioner had not engaged in any other professional misconduct during his suspension, that he had paid all his fines and dues, and that he had completed his MCLE. In reference to the requirement of Section 24 (E)(4), the Chairperson made a concerted effort to question the Petitioner about whether he truly recognized the wrongfulness and seriousness of his misconduct. She ultimately succeeded in eliciting an apology from the Petitioner who assured her he was sorry for what he had done. The Committee was also able to ascertain that Petitioner had been admonished on two prior occasions for conduct similar to the misconduct committed in this case, and that his future plans included working with plaintiffs lawyers and their clients to obtain structured settlements. In contrast, there were no questions from the Hearing Committee on the requirements of Section 24 (E)(6), whether the Petitioner has the requisite honesty and integrity to practice law. The Committee accepted evidence from Petitioner and his attorney, Exhibit P12, in globo, letters from nine of Petitioner s friends and colleagues. Each letter essentially consisted of a one page declaration that the writer had known the Petitioner for most of his life and that in the writer s opinion, Petitioner should be readmitted to the practice of law. One letter writer noted he had only limited knowledge of the circumstances which led to Petitioner s suspension. Another letter writer referenced Petitioner s good sportsmanship. Still another writer vouched that Petitioner was honest and trustworthy and said he was diligent in working for his client s best interest. All of the letter writers stated they have known the Petitioner for 30 years and longer. Although they all apparently knew him during the period of his 14
misconduct when he was engaged in a complex and calculated scheme to collect excessive fees from clients, to whom he was lying and withholding information regarding an estimated $15 million settlement, they nevertheless extolled his honesty and integrity. They failed to acknowledge any change in the Petitioner from the deceitful and dishonest lawyer who was suspended from the practice of law, to the person whom they say can now be trusted to deal honestly with his clients and not exploit them for his own benefit. Not one of the letter writers was called as a witness by Petitioner before the Hearing Committee. There was no testimony from them about how he has changed since his egregious misconduct, no cross examination about any transformation in his character, no evaluation of the letter writers credibility on the issue. The Petitioner testified as to his relationship with them, and the Petitioner answered a self-serving question from his attorney about whether he believes he has the requisite character and fitness to practice law. Not surprisingly, the Petitioner answered he did. There were no questions from the Hearing Committee that addressed the paramount issue of whether the Petitioner now has the honesty and integrity to practice law. The majority on the Board notes that Criterion (6) requires that the Board determine if the Petitioner has the requisite honesty and integrity to practice law, notwithstanding the conduct for which he was disciplined. Despite this language, a determination of his fitness on this issue cannot be made without consideration of the misconduct which led to his suspension. Where there has been serious misconduct it is necessary to determine whether the lawyer s character has been sufficiently rehabilitated. The more serious the misconduct, the stronger the petitioner s showing must be. When a lawyer has committed serious misconduct, he must convince a committee that he no longer suffers from the same lack of integrity and honesty that he demonstrated at the time of the misconduct. A positive change must be shown to assure that the same lack of moral probity will not reoccur if he is reinstated. There must be persuasive evidence that there has been some fundamental change in character and that he can now be trusted to place his clients interests before his own. The Hearing Committee committed manifest error in finding that Petitioner had met all the requirements of Rule XIX, Section 24(E). In order to satisfy Section 24 (E), Criterion (6), the Petitioner had the burden of proving, by 15
clear and convincing evidence that he now possess the honesty and integrity to return to the practice of law. In my opinion, the letters submitted by Petitioner, and perfunctorily accepted by the Hearing Committee, simply do not meet this evidentiary standard. Accordingly, I respectfully dissent. LOUISIANA ATTORNEY DISCIPLINARY BOARD ADJUDICATIVE COMMITTEE MEMBER 16
LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: RANDY J. UNGAR DOCKET NO. 15-DB-012 DISSENT With all due respect and consideration I must dissent with the majority and reiterate my concems, most of which are well articulated in the Adjudicative Committee Chairperson's comprehensive dissent. I strongly support this statement of dissent and ask that very careful consideration be given to its most important points---the protection of the public and the honor of the profession. Members of the legal profession have voluntarily chosen to be judged by a high standard of personal integrity and ethical principles. The govemingprinciple is thatmembers of the legal profession must adhere to fhe highest ethical standards to assure that public trust is nevet compromised or questiontd.. The petitioner in this case has sullied the legal profession. The institution does not owe reinstatement for, in my opinion, such an egregious betrayal of "trust and confidence" unless the amends cleady justify it_ In this case they do not and, I see nothing in vvritten or oral evidence that supports 11 clear and convincing" reason to return Mr. Randy J. Unger to the practice of law. This privilege should be closely guarded and not easily regained once compromised. The "burden of proof' 1n this case was not met. LOUISIA EVANS C. SPICELAND, JR. Adjudicative Committee Member 17
T_,OUISLA-l'lA ATTORNEY DISCIPLINARY BOARD IN RE: RANDY J. UNGAR DOCKET NO. 15-DB-012 DISSENT I hereby dissent for the reasons stated by Mr. Evans C. Spiceland, Jr. Adjudicative Committee Member 18