Dismissal Proposed For “Technical” Violation

A Louisiana Hearing Committee finds that violation of trust accounting rules were sufficiently mitigated to warrant dismissal of charges

The sole aggravating factor applicable in this case is substantial experience in the practice of law. However, even though Respondent has been admitted to the practice of law since 2006, it was not until 2012 that Respondent ultimately began his current solo practice and became responsible for management of a law office, including billing and bookkeeping duties. Multiple factors in mitigation are present in the instant matter, including absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify consequences of the misconduct, full and free disclosure and a cooperative attitude toward the disciplinary proceedings, good character or reputation, and remorse. The Committee notes that as to the mitigating factor of character or reputation, three witnesses provided compelling testimony on behalf of Respondent (Transcript, pp. 158-168, 232-247). The Committee also notes that, unlike in DeSalvo, Respondent has no prior disciplinary record.

If permitted, the Committee would recommend admonition as the appropriate sanction in this matter. However, Louisiana Supreme Court Rule XIX, §10(A)(5) states that “an admonition cannot be imposed after formal charges have been issued.” Therefore, the Committee is proscribed from suggesting admonition as the appropriate sanction. Thus, the Committee must evaluate reprimand, the minimum sanction available to it, versus dismissal of the charges despite the technical Rules violations.

Thus

The Committee agrees that one of the most important ethical duties owed by a lawyer to clients is the duty of loyalty, which includes the duty to preserve the property of clients, and commends the ODC for its tireless work in this regard. Given the facts of Respondent’s case, however, the Committee finds that although Respondent technically violated Rules 1:15(a) and (b), creating the potential for injury, no actual injury to Respondent’s clients has been established. Furthermore, pursuant to ABA Standard 9:32, the Committee finds a plethora of mitigating factors in this matter. Taken in conjunction, the Committee finds that the presence of significant mitigating factors in this matter warrant a reduction of the baseline sanction of reprimand. Under the totality of the circumstances, the Committee recommends dismissal of the charges against Respondent.

As is often the case, the investigation started with an IOLTA overdraft notice. (Mike Frisch)