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In re Hilburn6/18/1999
IN RE HILBURN, 99-1039 (La. 6/18/99); ___ So.2d ___
IN RE: Disciplinary Counsel; Ä Other(s); Findings and Recommendations (Formal Charges);
Disbarrment ordered. See per curiam.
CDT
WFM
HTL
CDK
BJJ
JPV
JTK
CALOGERO, C.J. not on panel.
ATTORNEY DISCIPLINARY PROCEEDINGS
This attorney disciplinary proceeding arises from six counts of formal charges instituted by the Office of Disciplinary Counsel ("ODC") against respondent, David Allan Hilburn, currently a suspended attorney.
UNDERLYING FACTS
Count I
Marlin Hadley retained respondent to file a personal injury action against Unique Industries, Inc. in connection with an accident that occurred on January 12, 1994. Respondent advised Ms. Hadley that he had contacted the defendant's liability insurer and that her case was progressing smoothly. More than one year after the accident, on January 13, 1995, respondent filed a petition for damages on behalf of his client in city court. Ms. Hadley's last contact with respondent was a letter dated March 17, 1995, in which he advised her that he had preserved her claim by filing suit within the prescriptive date. Thereafter, Ms. Hadley made repeated unsuccessful attempts to contact respondent by telephone and by mail. On November 29, 1995, Ms. Hadley learned that respondent had filed her suit on January 13, 1995, after the prescriptive date, without her knowledge or consent, and that her signature was forged on the verification affidavit. Subsequently, he failed to respond to Ms. Hadley's offer to settle his legal liability for the sum of $1,000.
Counts II though IV
On May 21, 1994, Kerry Jane Gibbs retained respondent to represent her in connection with an automobile accident. On or about May 17, 1995, respondent settled his client's claim with the insurer for $7,000 without her knowledge or consent. When Ms. Gibbs learned of the settlement offer on May 23, 1995, she rejected it. Respondent's next contact with Ms. Gibbs was in November, 1995, when he advised her that he would forward a check in the amount of $5,000 to her the following day.
The settlement check in the amount of $7,551.10 was endorsed by respondent and also signed "Kerry Gibbs by D.H." Respondent negotiated the check, but he never submitted a signed release to the insurer and he never delivered any funds to his client.
On August 12, 1996, Ms. Gibbs executed and filed an affidavit of forged endorsement concerning the settlement check, attesting to the facts that she did not endorse the check and that she tailed to receive any funds. On July 15, 1997, an attorney for the bank on which the check was drawn advised respondent that the item had been returned, and that Ms. Gibbs attested to the fact that she failed to receive any proceeds from the check. Respondent made no effort to resolve the matter or to reimburse the bank for its loss on the dishonored check.
Initially, respondent failed to cooperate with the ODC in the investigation of Ms. Gibbs' and Ms. Hadley's complaints. He further refused to provide any information concerning his client trust account and his compliance with IOLTA Rules. However, on February 18, 1998, respondent gave a sworn statement to the ODC, misrepresenting that the retainer agreement with Ms. Gibbs authorized him to deposit checks into his client trust account. He further claimed that he had Ms. Gibbs' proceeds on deposit in his client trust account. However, he failed to provide a copy of the retainer contract or any other evidence of his alleged authoriza
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