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In re Spears2/4/2000
ATTORNEY DISCIPLINARY PROCEEDINGS
This disciplinary matter arises from a petition for consent discipline filed by respondent, Clifton J. Spears, Jr., prior to the institution of formal charges. The Office of Disciplinary Counsel ("ODC") concurred in the petition, and the disciplinary board recommended the petition be accepted.
UNDERLYING FACTS
The facts were stipulated by respondent. In February 1995, Debra Mose contacted respondent to discuss a personal injury matter. Respondent and Ms. Mose did not discuss the issue of fees, nor enter into a written contract.
Thereafter, respondent failed to file suit on Ms. Mose's behalf before the running of prescription. Nevertheless, respondent led Ms. Mose to believe that her claim was still viable. He then paid her $5,000 from his personal funds and led her to believe that these funds were from a settlement of the case. After learning of respondent's conduct, Ms. Mose filed a legal malpractice suit against him.
DISCIPLINARY PROCEEDINGS
Prior to the filing of formal charges, respondent filed a petition for consent discipline. Respondent admitted that he failed to act with due diligence in representing Ms. Mose and to misleading her. Respondent proposed that he be suspended from the practice of law for one year and thirty-one days, with all but thirty days deferred, subject to two years of probation and attendance at the Louisiana State Bar Association's Practice Assistance School. The ODC concurred in the proposed discipline. In a joint stipulation of facts accompanying the petition, the parties identified several mitigating factors, including no prior disciplinary record, absence of selfish motive, good faith effort to make restitution, cooperation with disciplinary counsel, and remorse. No aggravating factors are indicated.
Disciplinary Board Recommendation
Based on respondent's stipulations, the disciplinary board found that respondent breached his duty to his client by failing to file suit before prescription ran. He then allowed his own interests to conflict with those of his client when he knowingly led his client to believe that her claim was still viable and paid her $5,000 from his personal funds, leading her to believe that these funds represented a settlement of the case. The board found this conduct violated several provisions of the Rules of Professional Conduct.
In addressing the appropriateness of the proposed sanction, the board looked to this court's opinions in In re: Southall, 97-3221 (La. 5/8/98), 710 So. 2d 245, and In re: Thompson, 98-0079 (La. 5/8/98), 712 So. 2d 72. As in those cases, the board noted respondent failed to timely pursue his client's claim and allowed it to prescribe. Additionally, respondent misled his client into believing the "settlement" funds were from another party to the lawsuit, when they were actually his own personal funds. Given these facts, the board found the proposed sanction was consistent with the discipline imposed in Thompson and Southall.
Accordingly, the board recommended respondent be suspended from the practice of law for one year and thirty-one days, with all but thirty days deferred, subject to two years of probation and attendance at the Louisiana State Bar Association's Practice Assistance School. The board further recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court's judgment until paid.
Neither respondent nor the ODC filed an objection in this court to the recommendation of the disciplinary board.
DISCUSSION
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