Mercy Tempers Justice As Louisiana Supreme Court Probates Suspension

The Louisiana Supreme Court rejected an actual period of suspension as unduly harsh for an attorney’s failure to promptly pay a third party from settlement proceeds.

In recommending an actual period of suspension, both the hearing committee and the disciplinary board emphasized the knowing and intentional nature of respondent’s misconduct and the fact that she had been offered diversion in 2004 for similar misconduct. However, based on our review of the record, we find this sanction is unduly harsh.

At the time she settled her father’s personal injury case, respondent was experiencing significant personal and emotional problems attributable to a high-risk pregnancy. These issues appear to have contributed significantly to her negligence in failing to timely pay the medical provider. We see no evidence in the record that respondent’s misconduct was the result of a dishonest or selfish motive or a failure to learn from past mistakes. Indeed, had it not been for the complications of her pregnancy, we believe respondent would not have failed to timely remit the clinic’s funds.

The attorney represented her father in a personal injury matter and agreed to pay a chiropractic clinic out of settlement proceeds.

The case settled and the attorney disbursed proceeds to her father and waived her own attorneys fees and costs.

She arranged a reduction of the bill but only if it was paid off in 30 days.

It wasn’t. 

On August 6, 2014, respondent sent the clinic a cashier’s check in the amount of $4,000. On August 12, 2014, the clinic notified respondent that there was still a balance due of $901 and that, if the balance was not paid, it would “follow through with contacting the Louisiana Attorney Disciplinary Board.” Respondent informed the clinic that she would pay the $901 on August 29, 2014. However, the clinic still had not received the payment on September 11, 2014. That day and the next, the clinic contacted respondent about the balance. On September 17, 2014, respondent gave the clinic her debit card information in order to make the payment, but the charge was declined by the credit card company because it exceeded respondent’s daily limit for debit card transactions. On September 30, 2014, the clinic filed a disciplinary complaint against respondent; the ODC received this complaint in its office on October 3, 2014. Also on October 3, 2014, the clinic successfully charged $700 to respondent’s debit card. On November 11, 2014, the clinic successfully charged the remaining $201 to respondent’s debit card.

Her explanation 

in 2010, respondent commenced employment with the Louisiana Department of Children and Family Services (“DCFS”), where she remains employed as an Attorney IV. She also maintains a small private practice…

Regarding the payment to the clinic, respondent testified that she transferred the $4,000 from her trust account to her operating account because she had no checks for her trust account. She never purchased checks for the trust account because she did not have enough clients to justify the cost of the checks. She issued a $4,000 check from her operating account to the clinic soon after receiving the settlement funds, but the clinic never received the check. She did not send the clinic another $4,000 check until August 2014. Respondent also admitted that the $4,000 owed to the clinic was withdrawn from her operating account at some point before she issued the August 2014 check. In approximately March 2014, she withdrew the funds as cash so she could get a cashier’s check for the clinic but then inadvertently used the cash to pay her own personal expenses.

Respondent further testified that she learned she was pregnant in February 2014. She had previously suffered multiple miscarriages, and the pregnancy was high-risk due to her age and other health complications. Respondent’s activity was limited and her physician recommended bed rest, but she had to return to work at the DCFS because she is the sole bread winner for her family. Her pregnancy was so overwhelming that she let other matters drop. Respondent expressed remorse for her misconduct and stated that, under normal circumstances, she would not have failed to promptly pay the clinic, but her priority at the time was keeping her baby alive.

Before the hearing committee (findings linked here).

The committee determined that respondent knowingly and intentionally violated duties owed to her client and the public. She caused no actual injury of any significance, but the clinic was inconvenienced.

And the board

the board recommended respondent be suspended from the practice of law for one year and one day, with nine months deferred, followed by a two-year period of probation with the condition that respondent complete Trust Accounting School and obtain checks for her trust account.

The court

In light of the substantial mitigating factors present, the negligent nature of respondent’s conduct, the lack of any actual harm, and the fact that respondent made all but $201 in restitution before she had knowledge of the disciplinary complaint against her, we will reject the board’s recommendation. We will suspend respondent from the practice of law for one year and one day, fully deferred, subject to a two year period of supervised probation with…conditions [set forth in the opinion]. 

One condition is to get trust account checks. 

This former bar prosecutor applauds this result. (Mike Frisch)