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In re Henderson6/6/2002
convincing evidence that respondent issued a $600 N.S.F. check to Dr. Brown and did not make good on the check until after the matter had been reported to the district attorney's office. The committee also determined respondent failed to cooperate in the disciplinary investigation, because he did not produce the requested records.
Regarding the Spivey matter, the committee found the ODC proved by clear and convincing evidence that respondent failed to disburse funds to third party medical providers. However, the committee noted that respondent's conduct may have been more negligent than intentional. In support, it observed because of respondent's incomplete records and inattentiveness to these matters, he may have been unaware the third party providers were not paid. The committee further found respondent failed to cooperate in the ODC's investigation of this matter.
As to the final count relating to the LSU matter, the committee recognized that respondent testified he believed there were sufficient funds in the account to cover the check at the time it was tendered. Nonetheless, it determined the ODC proved by clear and convincing evidence that at the time respondent wrote the check, there were insufficient funds in his account to cover it.
In addressing sanctions, the committee concluded the baseline sanction for respondent's misconduct was disbarrment. As aggravating factors, it recognized respondent's prior discipline, selfish and dishonest motive, pattern of misconduct, multiple offenses, obstruction of the disciplinary process, refusal to acknowledge the wrongful nature of his conduct, and substantial experience in the practice of law (admitted 1981). In mitigation, the committee noted respondent's partial restitution, personal problems (including financial hardship), and perhaps the lack of knowledge that the third party medical providers had not been paid.
Based on these factors, the committee recommended that respondent be suspended from the practice of law for a period of three years, with the suspension to run consecutively to respondent's earlier suspension in Henderson I. The committee further recommended that the third year of the suspension be deferred, subject to the conditions that respondent make restitution to the third party health care providers, obtain additional continuing legal education, and comply with various supervision and reporting requirements.
The ODC filed an objection to the leniency of the hearing committee's proposed sanction.
Disciplinary Board Recommendation
The disciplinary board concluded the record supported the factual findings of the hearing committee in all respects. However, the disciplinary board determined the committee erred as a matter of law in deviating from the baseline sanction of disbarrment. Given the multiple violations and the numerous aggravating factors, the board recommended that respondent be disbarred from the practice of law and ordered to make full restitution to the third party medical providers.
Neither respondent nor the ODC filed an objection in this court to the recommendation of the disciplinary board.
DISCUSSION
Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, ยง 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: Quaid, 94-1316 (La. 11/30/94), 646 So. 2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So. 2d 444 (La. 1992). While we are not bound in any way by the findings and recommendations of the hearing committee and discipl
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