Opinion
No. 2023-B-01624
02-27-2024
IN RE: Richard Forrest WHITE
Genovese, J., concurs in the result. Crain, J., concurs in the result. McCallum, J., concurs in the result.
Findings and Recommendations (Formal Charges). ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
1This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Richard Forrest White. Respondent is currently disbarred for misconduct that occurred between 1995 and 2021. In re: White, 22-1701 (La. 2/24/23), 355 So. 3d 1085 ("White I").
Respondent is also admitted to the practice of law in Missouri and Washington. However, he is ineligible to practice law in both jurisdictions for failing to pay fees.
FORMAL CHARGES
In September 2016, James Zeno was injured in an automobile accident. Thereafter, he hired respondent to handle his personal injury claim. On September 1, 2017, respondent fax-filed a petition for damages on Mr. Zeno’s behalf. Respondent took no further action in the lawsuit, essentially allowing it to become abandoned. He also failed to communicate with Mr. Zeno and then failed to return Mr. Zeno’s file.
In August 2022, Mr. Zeno filed a disciplinary complaint against respondent. The ODC attempted to notify respondent of the complaint via certified mail and email but was unsuccessful. In late November 2022, the ODC’s investigator personally served respondent with notice of the complaint. Nevertheless, respondent failed to submit a response.
2 DISCIPLINARY PROCEEDINGS
In April 2023, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC), and 8.4(a) (violation of the Rules of Professional Conduct). Respondent failed to answer 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).
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 committee’s consideration.
Hearing Committee Report
After considering the ODC’s deemed admitted submission, the hearing committee acknowledged that the factual allegations set forth in the formal charges were deemed admitted when respondent failed to file an answer. Based upon the deemed admitted facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.
The committee then determined respondent negligently and knowingly violated duties owed to his client, which caused the client harm. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.
The committee found the following aggravating factors are present: a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial 3experience in the practice of law (admitted 1994), and indifference to making restitution. The committee determined that no mitigating factors are present. Turning to the issue of an appropriate sanction, the committee concluded that the application of the approach set forth in Louisiana State Bar Ass’n v. Chatelain, 573 So. 2d 470 (La. 1991), is warranted. In Chatelain, the court held:
Since the attorney-respondent cannot control the timing of the institution of disciplinary proceedings, it is generally inappropriate to disbar a previously disbarred attorney an additional time when the violations at issue occurred before or concurrently with the violations which resulted in the initial disbarment. When a second disciplinary proceeding against an attorney involves misconduct which 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.
Respondent’s current misconduct occurred during the same time period as his misconduct in White I. Nevertheless, the committee determined that the combined misconduct would have resulted in no greater sanction than that imposed in White I.
Accordingly, the committee recommended respondent be adjudged guilty of additional rule violations to be considered if and when he seeks readmission to the practice of law.
Neither respondent nor the ODC filed an objection to the committee’s report or recommendation. Therefore, pursuant to Supreme Court Rule XIX, § 11(G), the disciplinary board submitted the committee’s report directly to the court for review.
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.
4In 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 record of this deemed admitted matter supports a finding that respondent neglected a legal matter, failed to communicate with his client, failed to return the client’s file, and failed to cooperate with the ODC in its investigation. Based upon these facts, respondent has violated the Rules of Professional Conduct as charged.
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 miti- gating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So. 2d 520 (La. 1984).
Respondent knowingly violated duties owed to his client and the legal profession, which caused actual harm. We agreed with the hearing committee that the baseline sanction for this misconduct, standing alone, is suspension.
5We also agree with the committee that the approach set forth in Chatelain is applicable here. Respondent’s current misconduct occurred during the same time frame as his misconduct in White I. Therefore, based upon our holding in Chatelain, the appropriate sanction would take into account respondent’s combined misconduct from this matter as well as from White I.
In White I, we disbarred respondent for neglecting a legal matter and continuously misleading the client about the status of the legal matter, engaging in criminal conduct involving illegal drugs, failing to appear for his arraignment and evading a bench warrant for more than five years, ignoring a client’s multiple requests for the return of his file, and failing to cooperate with the ODC in three investigations. The addition of respondent’s current misconduct would have still resulted in an order of disbarment in White I.
Accordingly, we will adopt the committee’s recommendation and adjudge respondent guilty of additional rule violations to be considered if and when he seeks readmission to the practice of law.
DECREE
Upon review of the findings and recommendations of the hearing committee, and considering the record, it is ordered that Richard Forrest White, Louisiana Bar Roll number 22892, be and he hereby is adjudged guilty of additional rule violations warranting discipline, which shall be considered in the event he seeks readmission after becoming eligible to do so. 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.
Genovese, J., concurs in the result.
Crain, J., concurs in the result.
McCallum, J., concurs in the result.