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In re Warner6/27/2003
tandards for Imposing Lawyer Sanctions, the committee determined the baseline sanction for respondent's misconduct is a suspension. In aggravation, the committee recognized respondent's prior disciplinary offenses, dishonest motive, and substantial experience in the practice of law (admitted 1972). The committee did not find any mitigating factors are present. Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for one year and one day.
Respondent filed an objection to the hearing committee's report and recommendation.
Disciplinary Board Recommendation
The disciplinary board found the hearing committee's findings of fact are not manifestly erroneous. Specifically, the board agreed that Ms. Pierre's actions constituted a forgery, and that respondent's participation in that conduct rose to the level of fraud. After considering the definition of forgery set forth in La. R.S. 14:72, the board found it is evident that Ms. Pierre's efforts in signing her deceased father's name on the release and on the settlement check -- writings that have legal efficacy -- gave the false appearance that Mr. Victor had done so. The board also found that respondent directed Ms. Pierre to commit the forgery with the specific intent to defraud the insurance company. La. Civ. Code art. 1953 defines fraud as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction." Respondent misrepresented to the insurance company that the signature on the settlement documents was that of Mr. Victor, and he suppressed the truth by failing to inform the insurance company that Mr. Victor had died. As a result of these actions, the board found that respondent obtained an unjust advantage in his settlement negotiations with the insurance company.
Turning to the remaining question of whether, by his actions, respondent intended to obtain such an unjust advantage, the board concluded that respondent did so. Respondent acknowledged in his testimony before the committee that the settlement might not have been as readily perfected if the insurance company had been informed of Mr. Victor's death. Additionally, respondent noted that the prescriptive date was nearing and that Ms. Pierre was reluctant to pay the costs associated with the filing of a lawsuit. The board observed that it was in this environment that respondent made the conscious decision not to inform the insurance company of Mr. Victor's death and to have Ms. Pierre sign her father's name on the settlement documents. Respondent knew these actions would expedite the settling of the personal injury claim and avoid the possibility of protracted litigation. Respondent also knew these actions would deprive the insurance company of the ability to make a fully informed decision, and afford him an unjust advantage in the settlement negotiations relating to Mr. Victor's personal injury claim. Based on this reasoning, the board found the hearing committee's factual findings are supported by the record in all aspects.
Upon its review of the record, the board concluded respondent violated Rule 1.2(c) by counseling Ms. Pierre to sign her deceased father's name to the settlement documents. It found respondent's motive for doing so was to avoid protracted litigation which could impact his fee, creating a conflict of interest between respondent and his client for purposes of Rule 1.7. The board also recognized a violation of Rule 4.1 based on respondent's failure to disclose Mr. Victor's death to the insurance company and his misrepresentation th
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