Opinion
No. 2020-B-00757
09-23-2020
IN RE: Peter Brian DEROUEN
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Peter Brian Derouen, a disbarred attorney.
PRIOR DISCIPLINARY HISTORY
Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 2001. On October 16, 2017, we disbarred respondent. In re: Derouen , 17-1289 (La. 10/16/17), 226 So. 3d 1096 (" Derouen I "). The misconduct at issue in Derouen I occurred between 2014 and 2016 and involved respondent's neglect of his client's settlement, conversion of client and third-party funds related to that settlement, and failure to cooperate with the ODC in its investigation.
Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding. FORMAL CHARGES
18-DB-009
Dorothy Leftridge retained respondent to represent her in a medical malpractice case. Ms. Leftridge and respondent signed a contingent fee agreement on April 28, 2014. On May 1, 2014, respondent filed a petition for damages on behalf of Ms. Leftridge. After November 2014, Ms. Leftridge had no communication with respondent. In September 2016 and again in January 2017, Ms. Leftridge sent correspondence to respondent by certified mail requesting the return of her file, including all of her medical records which she had obtained and provided to respondent. Respondent did not respond to these requests.
In February 2017, Ms. Leftridge filed a complaint against respondent with the ODC. Respondent failed to answer the complaint, necessitating the issuance of a subpoena to obtain his sworn statement on May 15, 2017. Despite being personally served with the subpoena, respondent failed to appear.
In July 2017, the ODC took the sworn statement of Ms. Leftridge. Following her sworn statement, Ms. Leftridge sent to the ODC all documents which she had received from respondent. As of the date of the filing of the formal charges, respondent has not answered the complaint, communicated with Ms. Leftridge, or returned her file and medical records to her.
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).
18-DB-010
Helen Comeaux retained respondent to represent her in a personal injury matter. Respondent settled the matter for a total of $16,662.48. In March 2017, respondent met with Ms. Comeaux to disburse the settlement. Ms. Comeaux endorsed the settlement checks and signed a disbursement statement reflecting that her portion of the settlement was $11,662.48. However, Ms. Comeaux has never received her funds, despite repeated efforts on her part to contact respondent regarding the distribution.
In June 2017, Ms. Comeaux filed a complaint against respondent with the ODC. Respondent failed to answer the complaint.
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 8.1(c), 8.4(a), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c), and 8.4(d).
18-DB-021
Count I
Prior to his disbarment in Derouen I , respondent was declared ineligible to practice law on June 1, 2017 for failure to comply with the mandatory continuing legal education requirements, and on September 11, 2017 for failure to pay his bar dues and the disciplinary assessment. On July 24, 2017, despite his ineligibility to practice, respondent filed a petition for divorce on behalf of his client Eric Knight in the matter captioned as Eric Knight v. Heather Cormier Knight , No. 2017-4331-M1 on the docket of the 15th JDC for the Parish of Lafayette. In July 2017, counsel for Heather Knight filed a complaint against respondent with the ODC. Respondent failed to answer the complaint.
Count II
After respondent was declared ineligible to practice law for failure to comply with his professional obligations, he made two appearances before a hearing officer in the 15th JDC. Respondent made one appearance in late June 2017, before the hearing officer knew of respondent's ineligibility to practice. The second appearance occurred on August 7, 2017 in connection with the Eric and Heather Knight matter. According to the hearing officer, respondent was advised prior to court that he was still ineligible and that he could not make an appearance in the courtroom. Despite being so advised, respondent verbally appeared as counsel for Eric Knight when the docket was sounded. When the matter was called later in the day, respondent entered the courtroom as counsel for Mr. Knight. Counsel for Heather Knight orally objected to respondent's appearance. The matter did not proceed in part because of respondent's ineligibility and in part due to service issues.
In August 2017, the hearing officer filed a complaint against respondent with the ODC. Respondent failed to answer the complaint.
Count III
After respondent was declared ineligible to practice law for failure to comply with his professional obligations, he made numerous appearances in the courts of the 15th JDC, as follows:
On June 15, 2017, respondent filed a "Motion and Order to Continue and Reset" a hearing officer conference and hearing in the matter captioned as Paula Lynn Morgan v. Troy Anthony Breaux , No. 76956-H on the docket of the 15th JDC for the Parish of Acadia.
On June 23, 2017, respondent filed an "Ex Parte Rule for Sole Custody, Supervised Visitation, Mental Evaluation and for Modification of Visitation Order and Contempt" in the matter captioned as Laura Gary Faulk v. Eric Douglas Faulk , No. 2013-2363-H3 on the docket of the 15th JDC for the Parish of Lafayette. When respondent presented this pleading for filing, he was advised that he was ineligible to practice law and would have to provide a reinstatement notice or some other evidence of eligibility before the pleading could be acted upon. Respondent claimed to be unaware of his ineligibility but subsequently provided nothing to indicate that he had been reinstated.
On July 10, 2017, respondent appeared as attorney of record for the plaintiff in the matter captioned as Suzanne A. Dietz v. Katlyn C. Dietz , No. 2017-3756-A1 on the docket of the 15th JDC for the Parish of Lafayette. The matter was continued until July 24, 2017, at which time respondent again attempted to make an appearance on behalf of the plaintiff.
On July 24, 2017, respondent filed a "Petition for Divorce Pursuant to La. Civil Code Article 102 with Minor Children and Request for Restraining Orders" on behalf of Eric Knight in the matter captioned as Eric Knight v. Heather Cormier Knight , No. 2017-4331-M1 on the docket of the 15th JDC for the Parish of Lafayette. The district judge assigned to the case refused to execute the order accompanying the petition because of respondent's ineligibility. In the same proceeding, respondent attempted to make an appearance before the hearing officer for a hearing on a protective order set for July 26, 2017. The hearing officer advised respondent not to make an appearance because of his ineligibility, but nevertheless, respondent did so. Opposing counsel objected, and the hearing officer was forced to reschedule the matter.
On August 3, 2017, respondent appeared at a pretrial hearing in the matter captioned as State v. Cody Allen , No. 160966 on the docket of the 15th JDC for the Parish of Lafayette, and moved that a trial date be set in November.
On August 8, 2017, Chief Judge David Blanchet of the 15th JDC filed a complaint against respondent with the ODC. Respondent failed to answer the complaint.
The ODC alleged that respondent's conduct in 18-DB-021 violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized practice of law), 8.1(c), 8.4(a), 8.4(c), and 8.4(d).
18-DB-048
Count I
On June 1, 2017, the same day that respondent was declared ineligible to practice law, Christopher Taylor retained him to file an ex parte rule for sole custody of his son. Mr. Taylor paid respondent $1,100 in connection with the representation. Respondent subsequently informed Mr. Taylor that he had filed the rule and had a conversation with the district judge who indicated he would sign the order for sole custody. Thereafter, Mr. Taylor had difficulty communicating with respondent and finally telephoned the court. Staff at the court informed Mr. Taylor that nothing had been filed on his behalf. Mr. Taylor then terminated respondent's representation and requested that he refund the fee he had been paid. To date, respondent has failed to do so.
In July 2017, Mr. Taylor filed a complaint against respondent with the ODC. Respondent failed to answer the complaint.
Count II
On September 13, 2017, the trial deposition of Thaddeus Broussard, M.D. was conducted in the matter captioned as Tina Williams, et al. v. Darrell Breaud, et al. , No. 624104 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge. Respondent appeared for the plaintiffs at the request of plaintiff's counsel, Willie Johnson. Respondent participated in the deposition on behalf of the plaintiffs and conducted a cross-examination of Dr. Broussard. Following the deposition, the court reporter and defense counsel learned that respondent was ineligible to practice law.
On September 21, 2017, defense counsel filed a complaint against respondent with the ODC. Respondent failed to answer the complaint.
Count III
Eric Knight retained respondent to represent him in a divorce, custody, and community property matter. Mr. Knight paid respondent $3,000 for the representation. At his first court appearance, Mr. Knight learned for the first time that respondent was ineligible to practice law. Since that date, respondent has failed to communicate with Mr. Knight, and he has not refunded the attorney's fee he was paid.
Respondent also represented Mr. Knight in a personal injury matter. Mr. Knight has attempted to contact respondent concerning the status of the personal injury matter, to no avail. According to Mr. Knight, the hospital where he was treated following his accident has threatened to send his bills to a collection agency.
In October 2017, Mr. Knight filed a complaint against respondent with the ODC. Respondent failed to answer the complaint.
The ODC alleged that respondent's conduct in 18-DB-048 violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(a) (a lawyer shall not make an agreement for, charge, or collect an unreasonable fee), 1.5(f)(5) (when the client pays the lawyer a fixed fee, a minimum fee or a fee drawn from an advanced deposit, and a fee dispute arises between the lawyer and the client, either during the course of the representation or at the termination of the representation, the lawyer shall immediately refund to the client the unearned portion of such fee, if any), 5.5(a), 8.1(c), 8.4(a), 8.4(c), and 8.4(d).
DISCIPLINARY PROCEEDINGS
On January 25, 2018, the ODC filed the formal charges in 18-DB-009. On January 26, 2018, the ODC filed the formal charges in 18-DB-010. On February 23, 2018, the ODC filed the formal charges in 18-DB-021. On June 22, 2018, the ODC filed the formal charges in 18-DB-048. Respondent failed to answer any of the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). The four matters were then consolidated for consideration by one hearing committee. No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.
Hearing Committee Report
After considering the ODC's deemed admitted submission, the hearing committee acknowledged that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. The committee concluded that respondent violated the Rules of Professional Conduct as alleged in the formal charges.
The committee found that respondent violated duties owed to his clients. He acted knowingly and intentionally and in total disregard for the Rules of Professional Conduct. His misconduct caused substantial harm. The applicable baseline sanction is disbarment. The committee did not address the existence of aggravating and mitigating factors.
Considering the prior jurisprudence of this court in similar cases, as well as the permanent disbarment guidelines, the committee recommended that respondent be permanently disbarred. The committee also recommended that respondent be required to make restitution to the complainants and that he be assessed with the costs and expenses of this proceeding.
Neither respondent nor the ODC filed an objection to the hearing committee's report. Having received no objections, the disciplinary board submitted the committee's report directly to the court for consideration pursuant to Supreme Court Rule XIX, § 11(G). On November 12, 2019, this court remanded the matter to the board for further review.
Disciplinary Board Recommendation
After reviewing these consolidated matters, the disciplinary board noted that the factual allegations in each set of formal charges were deemed admitted and proven. The board then noted that in concluding that respondent violated the Rules of Professional Conduct as alleged in the formal charges, the hearing committee incorrectly suggested that respondent had admitted to these rule violations. Citing In re: Donnan , 01-3058 (La. 1/10/03), 838 So. 2d 715, the board clarified that only the factual allegations have been deemed admitted in this matter. In Donnan , this court held that "mere allegations of a rule violation, without specific factual allegations or supporting evidence, is insufficient to prove misconduct by the requisite ‘clear and convincing’ standard."
After considering the entirety of the record, including the deemed admitted factual allegations as well as the exhibits submitted by the ODC, the board determined that respondent violated the Rules of Professional Conduct as follows:
In 18-DB-009, respondent violated Rules 1.3 and 1.4 by failing to act with reasonable diligence on behalf of Ms. Leftridge and failing to keep her reasonably informed about her lawsuit. Respondent filed the suit in May 2014, but thereafter he made little progress in the matter and did not return Ms. Leftridge's numerous telephone calls. Ms. Leftridge received no communication from respondent after November 2014, despite sending two letters advising that she intended to retain other counsel and requesting the return of her file, including her medical records. Ms. Leftridge confirmed in her July 2017 sworn statement that she still had not heard from respondent or received her file materials from him.
Respondent violated Rule 8.1(c) by failing to respond to the disciplinary complaint filed by Ms. Leftridge, by failing to appear for his sworn statement, and by failing to produce documents pursuant to a subpoena duces tecum issued by the ODC. Respondent violated Rule 8.4(d) by failing to diligently pursue Ms. Leftridge's lawsuit. These violations establish the derivative violation of Rule 8.4(a). The board found the ODC did not prove a violation of Rule 8.4(c) by clear and convincing evidence.
In 18-DB-010, respondent violated Rules 1.3 and 1.4 by failing to diligently disburse $11,662.48 in settlement funds owed to Ms. Comeaux and failing to respond to her many messages and ultimately ceasing all communication with her. Ms. Comeaux endorsed the settlement checks and signed a settlement disbursement statement in March 2017, but she has never received her funds.
Respondent violated Rule 8.1(c) by failing to respond to the disciplinary complaint filed by Ms. Comeaux. By failing to disburse the settlement funds, respondent has effectively stolen or converted the monies due to Ms. Comeaux. This conduct is dishonest, deceitful, and criminal, reflects adversely on respondent's honesty, trustworthiness and fitness as a lawyer, and is prejudicial to the administration of justice, in violation of Rules 8.4(b), 8.4(c), and 8.4(d). These violations establish the derivative violation of Rule 8.4(a).
In 18-DB-021, respondent violated Rules 5.5(a), 8.4(c), and 8.4(d) by filing pleadings and appearing and/or attempting to appear in court proceedings while he was ineligible to practice law for failing to comply with his professional obligations. Respondent violated Rule 8.1(c) by failing to respond to the several disciplinary complaints pertaining to this matter. These violations establish the derivative violation of Rule 8.4(a).
In 18-DB-048, respondent continued to represent Mr. Knight in a personal injury matter, took on new representation of Mr. Knight and Mr. Taylor in domestic matters, and participated in the deposition of another client, all while he was ineligible to practice law. He failed to pursue the claims of Mr. Knight and Mr. Taylor, failed to maintain communication with them, and failed to return their fees. Respondent also failed to respond to the associated disciplinary complaints or accept mailings from the ODC. By engaging in the aforementioned misconduct, respondent violated Rules 1.3, 1.4, 1.5(a), 1.5(f)(5), 5.5(a), 8.1(c), 8.4(a), 8.4(c), and 8.4(d).
The board determined that respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession. By failing to disburse settlement proceeds to Ms. Comeaux and by failing to return unearned fees to Mr. Taylor and Mr. Knight, respondent caused actual financial loss to his clients. By failing to maintain communication with his clients or act diligently for them and by filing pleadings and making court and deposition appearances during a period in which he was ineligible to practice law, respondent delayed his clients’ legal matters and may have caused a loss of their rights or defenses. By practicing law while ineligible, respondent caused a delay in proceedings and potentially invalidated these proceedings, thereby harming the legal system. Finally, respondent failed to cooperate with the ODC's investigation of numerous complaints. Such conduct damages the legal profession by causing the unnecessary expenditure of the limited resources of the disciplinary agency and delaying the resolution of complaints. The board did not reach a conclusion as to the appropriate baseline sanction for respondent's misconduct, but instead listed several standards set forth in the ABA's Standards for Imposing Lawyer Sanctions that are instructive in determining an appropriate sanction for respondent's conduct.
The board found the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. The board found that no mitigating factors are supported by the record.
Turning to the issue of an appropriate sanction, the board first examined respondent's misconduct relative to his misconduct in Derouen I . Applying the analysis set forth in Louisiana State Bar Ass'n v. Chatelain , 573 So. 2d 470 (La. 1991), the board determined that as to the misconduct in 18-DB-009, which was mostly concurrent with the misconduct in Derouen I , consideration of respondent's failure to communicate with his client would have resulted in the same sanction of disbarment imposed in Derouen I . However, the board found that the misconduct in the other three consolidated proceedings occurred after the misconduct in Derouen I and is more egregious than that in Derouen I . This misconduct encompasses respondent's failure to communicate with several clients, his neglect of client matters, his conversion of funds belonging to three clients, his failure to cooperate in multiple disciplinary investigations, and his knowing and intentional practice of law while ineligible to do so. Considered independently, the board determined that disbarment would be warranted for this additional misconduct. Nevertheless, when respondent's conduct is taken as a whole, the board concluded that it is sufficiently egregious to warrant permanent disbarment.
In Chatelain , this court held that when a second attorney disciplinary proceeding involves conduct that occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.
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In support of its recommendation of permanent disbarment, the board cited Guideline 1 (repeated or multiple instances of intentional conversion of client funds with substantial harm) of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix D. The board also relied upon In re: Meyer , 13-2410 (La. 1/17/14), 131 So. 3d 43, and In re: Murphy , 17-0068 (La. 6/29/17), 224 So. 3d 947. In Meyer , an attorney was permanently disbarred for neglecting legal matters, failing to communicate with his clients, failing to refund $1,100 in unearned fees, failing to return his clients’ files, and failing to cooperate with the ODC in its investigations. In Murphy , an attorney was permanently disbarred for neglecting legal matters, failing to communicate with clients, failing to refund $7,150 in unearned fees, attempting to solicit clients from other attorneys, engaging in dishonest conduct, making misrepresentations to the court, practicing law while ineligible to do so, engaging in the unauthorized practice of law after being placed on interim suspension, engaging in criminal conduct, and failing to cooperate with the ODC in its investigations.
In the instant case, respondent failed to disburse $11,662.48 in settlement funds owed to Ms. Comeaux. He also collected attorney's fees from Mr. Taylor ($1,100) and from Mr. Knight ($3,000) when he was ineligible to practice law and has never returned those fees. The total amount of client funds converted by respondent exceeds the totals in Meyer and Murphy . Further, these instances of conversion are in addition to respondent's conversion of $18,627.68 from his client in Derouen I .
In addition to the aforementioned jurisprudence, the board noted several circumstances that further support the case for permanent disbarment, including respondent's prior disciplinary history, his failure to comply with professional obligations, his continued attempts to practice law while ineligible, his repeated failure to respond to complaints or participate in disciplinary investigations, his failure to engage in these proceedings, the presence of numerous aggravating factors, and the absence of mitigating factors.
Based on this reasoning, the board recommended that respondent be permanently disbarred. The board also recommended that respondent be ordered to make restitution to Ms. Comeaux and refund all fees to Mr. Taylor and Mr. Knight. The board further recommended that respondent be assessed with the costs and expenses of these proceedings.
Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So. 3d 57.
In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So. 2d 715.
The records of these four deemed admitted matters support a finding that respondent failed to communicate with clients, converted client funds, practiced law while ineligible to do so, and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated Rules 1.3, 1.4, 1.5(a), 1.5(f)(5), 5.5(a), 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So. 2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So. 2d 520 (La. 1984).
Respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession, causing actual and potential harm. The baseline sanction is disbarment. Aggravating factors include a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. No mitigating factors are apparent from the record.
With regard to the issue of an appropriate sanction, we agree that permanent disbarment is warranted. Guideline 1 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix D, indicates that permanent disbarment is warranted for "[r]epeated or multiple instances of intentional conversion of client funds with substantial harm." Respondent failed to disburse $11,662.48 in settlement funds owed to one client and failed to refund a total of $4,100 in attorney's fees paid by two clients when he was ineligible to practice law. Considering the actual financial loss suffered by these clients as a result of respondent's misconduct, we find that Guideline 1 is applicable. Accordingly, we will permanently disbar respondent. We will further order respondent to (1) pay restitution of $11,662.48, with legal interest, to Helen Comeaux; (2) provide a refund of $1,100, with legal interest, to Christopher Taylor; and (3) provide a refund of $3,000, with legal interest, to Eric Knight.
DECREE
Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Peter Brian Derouen, Louisiana Bar Roll number 27436, be and he hereby is permanently disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. It is further ordered that respondent shall make restitution to his clients as set forth in this opinion. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.