“Into The Realm Of A Disciplinary Proceeding”

In a matter where the attorney failed to properly handle a case in which a three-year-old child died when struck by a motorcycle, the Louisiana Supreme Court imposed a year and a day suspension with six months deferred.

The attorney neglected the matter, misrepresented the status of the claim and paid the client $7,500 to conceal her conduct

Following her daughter’s death, Ms. Jones retained respondent to represent her in a wrongful death claim against Mr. Dejean and his insurer. Respondent’s communications with Ms. Jones during the representation were sporadic. At some point during this time, respondent determined that Mr. Dejean did not have a valid insurance policy in effect on the date of the accident, and that it was highly unlikely Mr. Dejean would be able to respond financially to any damage award entered against him. Nevertheless, respondent did not disclose the absence of an insurance policy to Ms. Jones. She also did not disclose to Ms. Jones that she had not filed a lawsuit to interrupt prescription, or that she had declined to pursue the matter further.

But the client checked and found no lawsuit and sued the attorney

The [hearing]  committee noted that it was disturbed by respondent’s testimony concerning the legal malpractice suit filed against her by Ms. Jones. Respondent filed pleadings in the malpractice case alleging that Ms. Jones’ claim was barred by prescription, which the committee felt allowed respondent to benefit from her misconduct. Although respondent testified that it was “never [her] intention to put [Ms. Jones] in a position where she couldn’t seek any type of recourse against me at all,” when asked whether she had filed a pleading waiving prescription and allowing the malpractice claim to proceed, respondent said that she had not.

The post-neglect conduct made matters worse

The committee found respondent violated the Rules of Professional Conduct as charged in the formal charges. There is no question that respondent failed to act diligently in handling Ms. Jones’ case. She did no research into alternate sources of recovery, if any. She did not look for available witnesses. She did not investigate alternate theories of responsibility. Respondent failed to provide a copy of the contract evidencing the attorney-client relationship and failed to return the client’s file when requested. Respondent let the matter prescribe without the filing of a lawsuit. These facts could have constituted ordinary legal malpractice, had respondent admitted them to her client. Instead, she chose to do nothing at best and at worst to cover her mistakes with a series of actions that bring this matter into the realm of a disciplinary proceeding: she refused to return the client’s file even as of the date of the hearing, and she attempted to pay the client for her misconduct through a personal payment of $7,500 without advising the client of her negligence and without advising the client to seek further counsel. The committee found respondent acted knowingly, causing both actual and potential harm. The applicable baseline sanction is suspension. 

Justice Clark dissented and assigned reasons

I find the respondent’s act of neglecting her client’s legal matter, particularly one that sounds in such emotional distress, allowing it to prescribe, and failing to communicate with her client warrants more discipline than that imposed by the majority. It was only through the client and her family’s efforts in going to the courthouse to check on the status of the case that she was informed the case had never been filed. Respondent intentionally and knowingly misled her about the status of the matter when she stated that there was an issue with the insurance company check. Thereafter, the client repeatedly asked for her file to be returned to her, to no avail; even at the time of the hearing the file had not been returned. Additionally, respondent exacerbated the situation by not disclosing her malpractice, creating yet another obstacle of prescription for her client to face. For these reasons, I dissent.

 Justice Crichton also dissented on the lenient sanction. (Mike Frisch)