Opinion
No. 98-B-0079
May 8, 1998 Rehearing Denied June 5, 1998.
Charles B. Plattsmier, Esq., Bernadine Johnson, Esq., Counsel for Applicant.
Kevin D. Thompson, Esq., Counsel for Respondent.
CALOGERO, C.J., — dissents in part, being on the view that a public reprimand would be sufficient discipline in this case.
LEMMON, J., — dissents and assigns reasons.
This attorney disciplinary proceeding arises from the filing of one count of formal charges by the Office of Disciplinary Counsel ("ODC") against respondent, Kevin David Thompson, an attorney licensed to practice law in the State of Louisiana, for allowing his client's claim to prescribe and becoming involved in a conflict of interest by attempting to monetarily settle his liability with his client, in violation of Rules 1.3 (lack of due diligence); Rule 1.4 (failure to communicate with a client); 1.7(b) (representing a client with a present conflict of interest); 1.8(a) (entering into business transactions with a client); 1.8(c) (providing financial assistance to a client); 1.8(h) (making an agreement limiting the lawyer's liability for malpractice); 1.16(a) (declining or terminating representation); 8.3(a) (failure to report malpractice); 8.4(a) (violation of the Rules of Professional Conduct); and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.
The record indicates that respondent was retained by Carmen Lynn Scott to pursue a worker's compensation claim on her behalf. Respondent failed to timely pursue the claim and believed it had prescribed. Since respondent did not at the time have professional liability insurance, he made a "personal agreement" with Ms. Scott to advance funds up to $7,500.00 to her. After he made about twenty-five cash advances, aggregating to approximately $5,000.00 over a two year period, respondent had his client execute a "distribution statement" drafted in the language of a tort claim receipt and release agreement.
The record is conflicting as to whether Ms. Scott was made aware of the malpractice by the respondent when they entered into their agreement.
Respondent testified he only paid $5,000 because he valued Ms. Scott's claim at $7,500.00 and then deducted his 1/3 contingency fee.
Ms. Scott filed a complaint with the ODC. While the respondent admitted in his answer that he let the claim prescribe, he stated he advised his client of his failure to timely file her claim and agreed to pay her restitution in monthly installments pursuant to their agreement.
Thereafter, the ODC filed formal charges, and a hearing was conducted before the committee. The parties stipulated to the mitigating factors present: no prior disciplinary record, free disclosure with the ODC and inexperience in the practice of law. As factors in aggravation, the board argued dishonest and selfish motive, refusal to acknowledge wrongful nature of conduct, and vulnerability of the victim. Respondent testified on his own behalf and had a witness testify regarding his good reputation in the community.
Respondent was practicing law for one and one-half years at the time of his misconduct.
On September 4, 1997, the hearing committee filed its recommendation with the disciplinary board, proposing respondent be suspended from the practice of law for seventy-five days, with reinstatement conditioned on supervised probation for a period of eighteen months, as well as completion of mandatory continuing legal education primarily in the area of ethics.
On January 9, 1998, the disciplinary board issued its recommendation to this court. The board determined the evidence showed respondent permitted his client's case to prescribe and later became involved in a conflict of interest when he tried to settle his liability without advising his client to seek independent legal advice. The board recommended respondent be suspended from practice for a period of one year, with such suspension totally deferred, and placed on an eighteen month probationary period under the guidance of a practice monitor. It also recommended that respondent take two additional hours of continuing legal education in the area of ethics annually for all years or partial years he is on probation, as well as be assessed with costs.
On February 2, 1998, respondent filed an objection in this court to the disciplinary board's proposed sanction.
Upon review of the hearing committee and disciplinary board findings and recommendations, and considering the record, briefs, and oral argument, it is the decision of this court that the recommendation of the disciplinary board be adopted.
Accordingly, it is ordered respondent, Kevin David Thompson, be suspended from the practice of law for a period of one year, deferred, subject to an eighteen month period of supervised probation under the conditions set forth in the disciplinary board's recommendation. All costs in this matter are assessed against respondent.
After allowing his client's claim to prescribe, respondent told his client that her "claim had passed and it was my fault that it had passed." He proposed to make restitution to the client on a periodic payment basis for the value, as estimated by respondent, of the client's claim. Respondent should have, but did not, advise the client that she (the client) might consult another attorney to evaluate the claim. Plaintiff then proceeded to pay the amount of $5,000 over two years.
Indeed, as indicated by the attorney for the employer, the value of the claim estimated by the respondent for restitution purposes was very generous.
Respondent's failure to advise the client that she might seek an independent evaluation of the claim was mitigated by his inexperience in the practice of law and his free disclosure to disciplinary counsel and cooperation in the disciplinary proceeding. Moreover, the generous evaluation of the claim for purposes of restitution militates against findings by the hearing committee and disciplinary board of dishonest and selfish motive, vulnerability of the victim, and refusal to acknowledge wrongful conduct as aggravating circumstances.
Under these circumstances, a public reprimand, combined with a twelve-month period of supervised probation, is an adequate penalty for the misconduct proved in this case.