A Un-Waivable Conflict
The Louisiana Attorney Discipline Board recommends suspension with fitness for a multiple client non-waivable conflict of interest
From the date of the accident, it was clear that there was an un-waivable conflict of interest in representing both Mr. Taylor and [his son] Lawan. Mr. Taylor had rear-ended the truck, and therefore, had some comparative fault and liability in the matter. The police report documenting the accident specifically placed fault on Mr. Taylor and noted that he had been issued a ticket for following too closely to the truck. Mr. Taylor’s drug screen also tested positive for THC, indicating that marijuana was present in his system at the time of the accident. Respondent admitted during his sworn statement that he knew Mr. Taylor “may have some fault” in the accident. At no time did Respondent disclose to his clients that an un-waivable conflict of interest would exist in representing both Mr. Taylor and Lawan.
On July 27, 2017, Respondent (on behalf of Lawan) granted a full release of all claims against Mr. Taylor to Progressive Insurance Company (“Progressive”), Mr. Taylor’s auto liability insurer, in exchange for payment of the $15,000 limit under Mr. Taylor’s policy. Respondent thereafter disbursed those settlement funds as follows: $5,000 to Ms. Hodges (on behalf of Lawan), $5,000 to Mr. Taylor and $5,000 to Respondent as his attorney’s fee.
On October 18, 2017, Respondent filed a civil suit in state court (Civil District Court, Parish of Orleans) on behalf of Mr. Taylor and Ms. Hodges, individually and on behalf of Lawan, against the truck driver and the truck driver’s insurer. The lawsuit did not assert any claims by Lawan alleging the comparative negligence of Mr. Taylor. On December 1, 2017, the defendants removed the lawsuit to federal court. Respondent thereafter dismissed the lawsuit without prejudice. When asked why he dismissed the lawsuit, Respondent testified during his sworn statement, “I think because of the fact that there may have been conflicts of interest.
Respondent sought to represent and collect a fee as counsel for Taylor
In the matter at hand, Respondent’s misconduct was knowing and intentional. In an effort to collect a fee, he repeatedly ignored the advice of the other counsel with whom he consulted in the Hodges/Rousell/Taylor litigation concerning his un-waivable conflict of interest. He also filed a frivolous appeal in the Fifth Circuit Court of Appeals following the district court’s confirmation that he had a conflict of interest. His mental intent is similar to that seen in Lapeyrouse (knowing) and August (knowing, if not intentional), and as seen in those matters, his misconduct also caused actual harm. Seven aggravating factors and no mitigating factors are present in the instant matter. The sanction relating to his misconduct involving his conflict of interest falls in between Lapeyrouse and August. Moreover, the Committee was rightfully disturbed by Respondent’s “persistent non-participation in this process.” Hrg. Comm. Rpt., pp. 18-19. Such egregious conduct is addressed by the aggravating factor of bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. Clearly, ODC and the Committee went to great lengths to ensure that Respondent had the formal opportunity to address the unusual filings in this matter, submit any evidence he wanted considered, and participate in the hearings, but he failed to do so.
Given the totality of the misconduct, the significant aggravating factors, ABA Standard 4.32, and the case law cited above, the Committee’s recommended sanction of a two-year and one-day suspension, with one year deferred, appears to be reasonable and is adopted by the Board. Such a suspension will require Respondent to petition for reinstatement under Rule XIX, Section 24, should he wish to re-enter the practice of law. He will only be reinstated upon order of the Court, after meeting the requirements of Section 24(E) (or showing good or sufficient reason why he should nevertheless be reinstated) and demonstrating his fitness to practice law.
(Mike Frisch)