Not Every Technical Violation Merits Discipline
The Louisiana Disciplinary Board has dismissed a complaint as unproven by clear and convincing evidence.
The clients had retained Respondent’s firm to handle a personal injury matter but
Other attorneys in the law firm were assigned to handle, and actually handled, the claims. Respondent did not sign any pleadings in the case. He had no knowledge that the med pay checks had been received and endorsed at the time they were received and endorsed. The Committee was correct in determining that Respondent did not violate any duty to communicate with Complainants at the time of these events.
Respondent’s first knowledge of the med pay checks was from the disciplinary complaint filed by Complainants after the law firm’s representation had been terminated. Through his counsel, he provided a timely response to the complaint and he voluntarily appeared for a sworn statement taken by ODC shortly thereafter. The day after his sworn statement was taken, Respondent disbursed the funds from the law firm’s trust account in payment of the law firm’s expenses and medical bills of Complainants. At that time, Respondent provided Complainants with a written explanation and a detailed accounting of the disbursements. He also explained that the firm waived any fee on the funds. Respondent gave uncontradicted testimony that he disbursed the funds from the firm trust account in order of statutory priority of liens. Because the amount of the funds was not sufficient to cover all of the liens, no funds were disbursed to Complainants. Considering these facts, Respondent did not violate Rule 1.4.
As to an allegation that the firm’s power of attorney form violated conflicts rules
Because the Board finds that the rule is ambiguous, the ambiguous provision must be construed in favor of the Respondent, and therefore, a rule violation has not been proven by clear and convincing evidence.
…Further even if the Board were to accept ODC’s interpretation of Rule 1.8(k) and a rule violation had been proven, the Committee is correct that the violation would be a technical violation which does not warrant sanction. The Court has stated that “not every violation of the Rules of Professional Conduct warrants the imposition of formal discipline.” In re Dalton, 2009-1288 (La. 10/2/09), 18 So.3d 743, 747. In certain cases, the Court has held that under the totality of the circumstances presented, formal discipline is not warranted despite a finding of a rule violation. Id.
Good faith
The evidence presented in this matter shows that if the wording of the power of attorney form used by Respondent’s law firm was in violation of Rule 1.8(k), such violation was unintentional and not the product of a dishonest or evil motive. To the contrary, the evidence supports that Respondent had attempted to ensure that the law firm’s practices were in compliance with all ethical rules. Within two to three years before Complainants retained the law firm, Respondent had engaged an attorney ethics advisor to audit the entire firm practices and forms to ensure that the firm was meeting all ethical standards. Nothing about the power of attorney was brought to the firm’s attention at that time. T.41-45. Additionally, when ODC raised an issue about the use of the power of attorney after the disciplinary complaint was filed, Respondent stopped using the power of attorney in the law firm and stopped enforcing then existing powers of attorney. Further, no harm was suffered by Complainants in this matter. Considering the totality of the circumstances here, even had ODC met its burden of proof by clear and convincing evidence that Respondent violated Rule 1.8(k), such violation would not rise to the level of sanctionable misconduct.
(Mike Frisch)