Opinion
NO. 96-B-0603
September 20, 1996 Concurring Opinion of Justice Lemmon, October 24, 1996
DISCIPLINARY PROCEEDINGS
Respondent, Henry B. King, Jr., and his former law partner, were retained by Kelvin York ("York") in January of 1990 to represent York's father before the Louisiana Parole Board. Respondent claims he did not know either of them had been retained until May of 1990, after York had already paid the firm $3,370 in fees. At that time, respondent became aware that York was very unhappy with the fact that no work had been done on the case, and, although respondent believed York to be his law partner's client, he represented to York that he would become involved in the case and then visited York's father in jail. Respondent's law partner did no other work on the case after May of 1990. At all times, York believed he had hired respondent, not his law partner. In fact, York testified he agreed to the fee at the initial consultation with respondent in January of 1990.
In September of 1990, respondent terminated the partnership and moved into a new law office. York came to respondent's new office in September with two witnesses who were willing to testify on his father's behalf. Respondent did no other work on the case. In November or December of 1990, York hired another attorney to represent his father. In February of 1991, respondent terminated his representation of York's father by letter, without doing any substantive work on the case, without providing an accounting to York and without returning the unearned portion of the fee. Respondent's disciplinary record contains three private reprimands, two of which involve respondent's failure to return client funds. Formal charges were filed against respondent, alleging that he failed to act with diligence and promptness, failed to properly inform his client, failed to account for the advanced fee and failed to refund the unearned fee. After formal charges were filed, respondent returned one-half of the unearned fee.
After a formal hearing, the hearing committee recommended that the charges be dismissed because disciplinary counsel failed to prove the charges by clear and convincing evidence. The disciplinary board recommended a six month suspension followed by a one year probationary period subject to certain conditions.
Upon review of the hearing committee and disciplinary board findings and recommendations, and considering the transcript, record, briefs and oral argument, this Court finds the evidence clear and convincing that respondent violated Rule 1.3 in that he failed to act with reasonable diligence and promptness in representing York from May 1990 until he terminated his representation of York in February 1991. Furthermore, this Court finds that respondent violated Rule 1.16(d) in that he failed to refund to York the amount of fees unearned by him upon termination of the representation. However, by way of mitigation, we recognize that the hearing committee found that the fee was actually received by respondent's law partner.
Accordingly, and considering respondent's prior disciplinary record, it is ordered that respondent be suspended from the practice of law for a period of six (6) months, with the sentence deferred for a one-year probationary period. Deferment of respondent's suspension shall be subject to the following probation conditions: (1) that a probation monitor be appointed to assist respondent in the implementation of engagement and termination letters and the rendition of client accountings as well as the development and use of internal controls and systems for file and case management, and that the probation monitor may require respondent to engage the services of a certified public accountant, at respondent's expense, to ensure that all client funds are dispersed and protected in an orderly manner during the period of probation; (2) that respondent timely pay all bar dues and assessment fees, and comply with all registration and MCLE requirements; (3) that respondent cooperate with the Office of Disciplinary Counsel regarding the investigation of any complaint filed against him; and (4) that there shall be no violations of the Rules of Professional Conduct by respondent during the probationary period. All costs of these proceedings are assessed against respondent.
The Hearing Committee found as a fact that York "did not have a good grasp of the facts of this case" and that the "testimony of [respondent's former law partner] is simply not believed by this committee." The Committee accordingly dismissed all charges as not proved by clear and convincing evidence.
The Disciplinary Board, with four dissents, concluded from the record that respondent failed to account for the fee paid in advance to his firm, failed to return the unearned portion of the advance fee, and failed to act with diligence. The Board accordingly recommended a six-month suspension.
One perplexing question (that the court perhaps should discuss in a full opinion) is what one member of a disbanded two-person firm, whose partner received the entire fee after the initial consultation and was found not credible in his testimony, must do to discharge his ethical responsibility to the firm's clients regarding unearned fees, beyond returning one-half of the fee (which respondent did, although untimely, to this client's satisfaction). This question is further complicated by the fact that Rules of Professional Conduct 1.5 (f), governing the handling of advance fees, was not adopted until September 1992 (after the misconduct in this case). Because Rule 1.5 (f) was adopted, after extensive committee study and recommendation, to clarify an uncertain area of the law, the uncertainty of the law at the time of any violation of a responsibility to refund was a significant mitigating factor as to the most serious charge.
Nevertheless, respondent made no effort to account and was not diligent in his efforts to fulfill his firm's contract. The prior disciplinary violations also aggravated these lesser violations. Accordingly, a suspension is warranted, but the Hearing Committee dismissal and the timing of the Rule 1.5 (f) clarification dictate deferral of the suspension and a period of probation.