Opinion
No. 2020-B-00292
06-03-2020
IN RE: Darrell K. HICKMAN
Suspension imposed. See per curiam.
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Darrell K. Hickman, an attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
The Mose Matter
In May 2011, Evelyn Mose hired respondent to represent her in a wrongful termination matter. Throughout the representation, respondent failed to communicate with Ms. Mose, including failing to respond to Ms. Mose's attempts to contact him or meet with him. For example, Ms. Mose unnecessarily traveled to Alexandria for her deposition, which had been canceled, because respondent failed to inform her of the cancellation.
Eventually, Ms. Mose requested her file and, on February 18, 2014, went to respondent's office to retrieve same. Respondent was not present when she arrived, but another attorney in the office made the file available for her review. Upon reviewing the file, Ms. Mose learned that respondent had failed to timely submit discovery responses to opposing counsel and had ignored opposing counsel's requests to schedule Ms. Mose's deposition. From her review of the file, Ms. Mose further discovered that opposing counsel had filed a motion for summary judgment, which respondent failed to oppose, and her case was dismissed with prejudice on August 19, 2013. Respondent never informed her of the dismissal. Furthermore, Ms. Mose believed that respondent would also file an EEOC claim on her behalf, but she learned he never did so.
In April 2014, Ms. Mose filed a disciplinary complaint against respondent. In response to the complaint, respondent admitted to failing to communicate with Ms. Mose. He also admitted he did not oppose the motion for summary judgment, explaining that his research indicated opposing counsel's arguments in favor of summary judgment were correct; thus, opposing the motion "would have been an exercise in futility."
The Edgerly Matter
In October 2011, Allen Edgerly, Jr. hired respondent to handle his divorce and community property partition. Mr. Edgerly paid respondent a total of $1,300, and respondent informed him that his divorce would be completed within three months. During the representation, respondent advised Mr. Edgerly of numerous court dates, all of which were postponed. Mr. Edgerly believed respondent lied about obtaining the court dates.
Three years after hiring respondent, Mr. Edgerly went to the clerk of court's office to retrieve a copy of his judgment of divorce, but he discovered there was no judgment. In January 2015, he checked the court record again, but there was still no judgment. In April 2015, the judgment of divorce was finally signed.
In October 2014, Mr. Edgerly filed a disciplinary complaint against respondent. In response, respondent indicated that Mr. Edgerly and his wife stipulated to the divorce in May 2012, and opposing counsel agreed to draft the judgment of divorce. Respondent also claimed there was no community property to divide. Thereafter, respondent checked the court record and verified that opposing counsel had never filed the judgment of divorce. Accordingly, respondent filed it himself, and the judge signed it in April 2015.
DISCIPLINARY PROCEEDINGS
In August 2018, 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), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent filed an answer to the formal charges, in which he denied all misconduct in both matters other than failing to communicate with Ms. Mose. He specifically denied agreeing to file an EEOC claim on Ms. Mose's behalf. He also specifically denied informing Mr. Edgerly of multiple court dates, claiming he only told Mr. Edgerly of one court date that took place in May 2012. In light of respondent's answer, the matter proceeded to a formal hearing on the merits.
Hearing Committee Report
After considering the testimony and evidence presented at the hearing, the committee made factual findings as follows:
1. In the Mose matter, respondent and Ms. Mose did not have a written representation agreement. Respondent filed a wrongful termination lawsuit on Ms. Mose's behalf. However, a dispute exists as to whether respondent was supposed to file an EEOC claim on Ms. Mose's behalf or whether she would handle the filing herself. The wrongful termination lawsuit was dismissed via summary judgment because respondent sued the wrong party and the claim prescribed. Respondent then failed to notify Ms. Mose of the dismissal.
2. In the Edgerly matter, respondent and Mr. Edgerly did not have a written representation agreement. Respondent filed a petition for divorce on Mr. Edgerly's behalf. However, a dispute exists as to whether the representation included the partition of community property. A dispute also exists as to who was supposed to prepare the judgment of divorce. Respondent claimed opposing counsel was supposed to draft the judgment, while Mr. Edgerly believed the task was respondent's obligation. Nothing in the court record indicates that opposing counsel was charged with drafting the judgment, and respondent ultimately prepared and filed same.
3. Respondent has implemented certain office procedures to improve office efficiency and client communications. Specifically, he has hired a
secretary and implemented case software to track client matters.
Based on these facts, the committee determined that, in the Mose matter, respondent violated the Rules of Professional Conduct as charged, noting respondent admitted to violating Rules 1.4 and 8.4(c) during the hearing. In the Edgerly matter, the committee determined that respondent violated Rules 1.3, 1.4, and 8.4(a), noting respondent admitted to violating Rules 1.3 and 1.4 during the hearing. With respect to Rule 8.4(c) as it relates to the Edgerly matter, the committee determined there is insufficient evidence to find a violation of same.
The committee then determined respondent violated duties owed to his clients, the legal system, and the legal profession. His conduct was negligent, knowing, intentional, and dishonest, and it caused both actual and potential harm. Relying on the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is a period of suspension followed by probation.
In aggravation, the committee found a prior disciplinary record, a pattern of misconduct, vulnerability of the victim, and substantial experience in the practice of law (admitted 1994). In mitigation, the committee found full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, a delay in the disciplinary proceedings, and remoteness of prior offenses. In additional mitigation, the committee noted respondent has taken steps to improve his office administration and his communication with clients.
In 2014, respondent and the ODC submitted to this court a joint petition for consent discipline, in which respondent stipulated to misleading a client about the status of her legal matter. We accepted the petition for consent discipline and imposed the parties’ proposed sanction of a fully deferred one-year suspension from the practice of law. In re: Hickman , 14-0817 (La. 5/16/14), 140 So. 3d 711.
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After further considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day, with six months deferred, followed by one year of supervised probation with the conditions that he complete the Louisiana State Bar Association's Ethics School and complete a training session on time management and law office practice to improve efficiency and client communications.
Both respondent and the ODC filed an objection to the committee's recommendation.
Disciplinary Board Recommendation
After review, the disciplinary board determined the hearing committee's factual findings are not manifestly erroneous and adopted same. The board also determined that the committee's conclusions regarding rule violations are supported by clear and convincing evidence.
The board then determined respondent negligently and knowingly, but not intentionally, violated duties owed to his clients. His conduct caused actual harm to Ms. Mose and potential harm to Mr. Edgerly. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is suspension.
In aggravation, the board found a prior disciplinary record, a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law. In mitigation, the board found full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, a delay in the disciplinary proceedings, and remoteness of prior offenses. In additional mitigation, the board noted that a significant percentage of respondent's practice involves criminal defense and that respondent has a contract with the public defender's office to provide criminal defense work for the indigent.
After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day, with all but three months deferred, followed by one year of probation with the condition that any misconduct during the probationary period be grounds for making the deferred portion of the suspension executory and/or imposing additional discipline, as appropriate.
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. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So. 2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So. 2d 150.
In this matter, the record supports a finding that respondent neglected two legal matters, failed to communicate with two clients, and misrepresented the status of a case to one client. This misconduct amounts to a violation of the Rules of Professional Conduct as found by the hearing committee and adopted by the disciplinary board.
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 negligently and knowingly violated duties owed to his clients, causing actual and potential harm. The baseline sanction for this type of misconduct is suspension. Aggravating factors include a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. Mitigating factors include full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, as well as a delay in the disciplinary proceedings.
Case law suggests that the board's recommended sanction is appropriate. In In re: Bruno , 17-1012 (La. 10/9/17), 227 So. 3d 274, an attorney with a prior disciplinary record neglected a legal matter, causing the client's claim to prescribe, and failed to communicate with the client; for this misconduct, we imposed a ninety-day suspension, with all but thirty days deferred. In In re: Christenberry , 13-2461 (La. 1/27/14), 132 So. 3d 388, an attorney neglected two legal matters, failed to communicate with a client, failed to timely refund unearned fees to a client, and failed to cooperate with the ODC in an investigation; for this misconduct, we imposed a one year and one day suspension, with all but three months deferred, followed by two years of supervised probation. Finally, in In re: Schmidt , 13-2023 (La. 12/10/13), 130 So. 3d 908, an attorney neglected legal matters, failed to communicate with clients, failed to promptly return unearned fees and client files, and failed to cooperate with the ODC in an investigation; for this misconduct, we imposed a one year and one day suspension, with all but sixty days deferred, followed by two years of supervised probation with conditions.
Based on the above jurisprudence, and considering the record, we will adopt the board's recommendation and suspend respondent from the practice of law for one year and one day, with all but three months deferred, followed by one year of probation with the condition that any misconduct during this period may be grounds for making the deferred portion of the suspension executory or imposing additional discipline, as appropriate.
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Darrell K. Hickman, Louisiana Bar Roll number 22797, be and he hereby is suspended from the practice of law for a period of one year and one day, with all but three months deferred, followed by one year of probation subject to the condition that any misconduct during this period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. 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.