LOUISIANA STATE BAR ASS'N v. HAYLING
529 So.2d 1 (1988)
LOUISIANA STATE BAR ASSOCIATION
v.
Charles C. HAYLING III.
No. 87-B-0900.
Supreme Court of Louisiana.
May 23, 1988.
Thomas O. Collins, Jr., Cheri A. Cotogno, New Orleans, Gerard F. Thomas, Jr., Natchitoches, Roland J. Achee, Shreveport, Robert J. Boudreau, Lake Charles, Robert M. Contois, New Orleans, Frank J. Gremillion, Baton Rouge, Carrick R. Inabnett, Monroe, Harvey Lewis, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pe, Metairie, for applicant.
Charles Hayling, Baton Rouge, for respondent.
MARCUS, Justice.
The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted a proceeding against Charles C. Hayling III, a member of said association. Prior to the commencement of this proceeding, the committee had conducted investigations of respondent's alleged misconduct in accordance with article 15, section 3 of the articles of incorporation of the association. Notice of the proceedings which involved six specifications of misconduct, was sent to respondent by certified and regular mail dated February 20, 1987.
The committee held a formal investigative hearing on the six specifications on March 14, 1987, as provided in article 15, section 3(b) of the articles of incorporation. Respondent was not present nor was he represented by counsel at this hearing.1 Based on the evidence adduced at the hearing, the committee was of the unanimous opinion that respondent had violated laws of the state relating to the professional conduct of lawyers and the practice of law of sufficient gravity as to evidence a lack of moral fitness for the practice of law. Specifically, the committee found that respondent was guilty of the misconduct described in the specifications. On April 21, 1987, the committee instituted in this court a suit for disciplinary action against respondent under the provisions of article 15, section 4(c) of the articles of incorporation. Respondent filed an answer to the petition. The court, by order, then appointed Mr. Cyrus J. Greco as commissioner to take evidence and file a report with this court setting forth his findings of fact and conclusions of law. Louisiana State Bar Association Articles of Incorporation, article 15, section 6(b) and (d).
A hearing before the commissioner was held on October 1, 1987. Neither respondent
nor his attorney was present.2 The committee introduced in evidence the entire record of the earlier investigative hearing, whereupon the committee rested its case. The commissioner filed with this court his written report on October 19, 1987, wherein he stated his findings of fact and conclusions of law and recommended that respondent be disbarred from the practice of law. The committee concurred with the commissioner's findings including the recommendation that respondent be disbarred. The bar association has the burden of establishing by clear and convincing evidence that respondent was guilty of the alleged specifications of misconduct. Louisiana State Bar Association v. Dowd,445 So.2d 723 (La.1984). The following allegations of misconduct have been made against respondent.3 The first specification of misconduct concerns respondent's handling of settlement funds belonging to one of his clients, Ms. Pearley Mealey. The specification accuses respondent of neglecting a legal matter entrusted to him in violation of DR 6-101(A)(3),4 of failing to maintain complete records of client's funds and of failing to render appropriate accounts to his client regarding those funds in violation of DR 9-102(B)(3),5 and of commingling and converting his client's funds in violation of DR 1-1026 and 9-102(A) and (B).7
1. The committee sent several subpoenas to respondent commanding him to appear before it.
The committee also sent other letters to respondent.
2. According to the commissioner, a registered letter was sent to Mr. Hayling which was signed for him by his wife. The commissioner also stated that he talked to Mr. Hayling on two different occasions, the last being the day before the hearing, and that Mr. Hayling told the commissioner he knew the date, time and place of the hearing and that he was going to come and present evidence.
3. The specifications of misconduct as drafted by the committee are listed in an appendix to this opinion.
4. DR 6-101(A)(3) provides:
(A) A lawyer shall not:
(3) Neglect a legal matter entrusted to him.
5. DR 9-102(B)(3) provides:
(B) A lawyer shall:
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
6. DR 1-102 provides:
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
7. DR 9-102 provides:
(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
8. In respondent's answer, he admitted that he was retained by Ms. Mealey, that he had her sign the settlement draft and that he negotiated the draft. He also claimed that the money that was owed to Ms. Mealey was taken by his wife who was separated from him at the time that he brought the money to his home and that he was unable to retrieve the money until November 19, 1985. Respondent also claimed that an affidavit had been executed by his wife attesting to the above facts. In the commissioner's report, the commissioner stated that he called respondent's wife who stated that she had executed an affidavit but was evasive about what it said. The commissioner also stated that he had never been presented with a copy of any affidavit.
9. Supra note 6.
10. Supra note 4.
11. Supra note 5.
12. Supra note 6.
13. Supra note 7.
14. In respondent's answer, he admitted that he guaranteed payment to Dr. Plantz. However, he claimed that no money was withheld from the funds owed to Mr. Rogers to pay Dr. Plantz. He also claimed that he possessed a disbursement form executed by Mr. Rogers which showed that Mr. Rogers received all of the money. In the commissioner's report, the commissioner stated that he was never furnished with a copy of that form.
15. Supra note 6.
16. Supra note 4.
17. Supra note 5.
18. Supra note 7.
19. In respondent's answer, respondent claims that he had put the cash from the settlement in his brief case which was then taken from his car. Respondent told the commissioner that he had affidavits to prove this, but neither the committee nor the commissioner has ever received anything from respondent.
20. Supra note 4.
21. DR 7-101(A)(2), (3) provides:
(A) A lawyer shall not intentionally:
(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).
22. In respondent's answer, he claims that he had told Mr. Taylor he would not file the suit until Mr. Taylor paid him the filing fee. Respondent claims that the $150 paid to him by Mr. Taylor was not for the filing fee and that he never filed Mr. Taylor's suit because he never received the filing fee.
23. Supra note 4.
24. Supra note DR 7-102(A)(2) and (3) provides:
(A) In his representation of a client, a lawyer shall not:
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
25. In respondent's answer, he claims that he did not file the adoption papers because he did not have the child's birth certificate. He stated that he never received the certificate and that he finally had to get it himself. He then said that he did not file the papers because Ms. Young would not give him the rest of his fee.
26. Supra note 6.
27. Rule 8.4 provides:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a judge, judicial officer, governmental agency or official;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;
(g) except upon the expressed assertion of a constitutional privilege, to fail to cooperate with the committee on professional responsibility in its investigation of alleged misconduct; or
(h) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
28. The committee has been in contact with the respondent since the first complaint was filed with it by Ms. Pearley Mealey in September of 1985. Both the committee's and the commissioner's hearings were held in 1987. Since the new Rules of Professional Conduct became effective January 1, 1987, and since the old Code of Professional Responsibility became replaced at that time, respondent's failure to cooperate with the committee since 1985 makes his conduct fall under both the Code of Professional Responsibility and the new Rules of Professional Conduct.
1. Testimony indicates that this amount was actually $550.
2. According to the record, Mr. Taylor paid respondent this sum on April 24, 1985.
1. As to the period of suspension, I recognize that failure to cooperate with the Bar Association is considered as an aggravating circumstance. Standards for Imposing Lawyer Sanctions 9.22(E) (1986). Rather than extend the suspension because of this aggravating circumstance, I would prefer to adhere to the recommendation in Standards for Lawyer Discipline and Disability Proceedings 6.3 (1979) that a suspension should not exceed three years. If the aggravating circumstance is serious enough to remove the case from the three-year suspension category in Hinrichs, then the lawyer should be disbarred.