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In re Dumas6/7/2002
ndent cashed the check and withheld the funds. Respondent disputed his client's testimony that he would not speak to her following the period her check to the automobile dealership was returned for insufficient funds. Specifically, he testified that he had numerous conversations with his client advising her to come to his office to get her portion of the funds, but she refused because she was unsatisfied with the amount she was to receive.
Hearing Committee Recommendation
The hearing committee found the ODC proved by clear and convincing evidence the allegations subject of the formal charges. It determined that respondent converted and commingled client funds in violation of Rule 1.15 (failure to safe keep client and third party property) and failed to advise his client of the IRS lien on his account and the status of payments to the medical providers in violation of Rule 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation).
Relying on Louisiana State Bar Ass'n v. Pasquier, 545 So. 2d 1014 (La. 1989), the committee found no merit in respondent's defense that he failed to deposit the funds because he feared the money would be seized by the IRS. In support, it noted that his retention of funds for his client did not excuse him from complying with the professional rules regarding the management of funds. Moreover, it pointed out that respondent could have had separately issued checks from the bank, rather than cashing the check and retaining the funds. The committee found that the record conclusively established respondent did not properly account to his client for the disposition of the settlement funds or his failure to timely pay the third party medical providers. As aggravating factors, the committee recognized respondent's failure to account for the funds, improper use of his operating account to disburse client funds, prior disciplinary record, dishonest or selfish motive, lack of remorse, pattern of misconduct and multiple offenses. It found respondent did not present credible evidence in mitigation. Accordingly, the committee recommended respondent be suspended for a period of three years, subject to a one year period of supervised probation.
Disciplinary Board Recommendation
The disciplinary board accepted the committee's findings that clear and convincing evidence exists to support violations of Rules 1.15(a) (failure to keep funds of a client or third party separate from attorney's own funds), 1.15(b) (failure to refund and account for client funds) and 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation).
In addressing the issue of sanctions, the board concluded respondent knowingly violated duties owed to his client by failing to hold Ms. Bolinger's funds separate from his own and by not making the funds available to her in a timely fashion. The board found that respondent knew or should have known that he failed to make the funds available within ten days as promised and that he failed to timely pay the third party medical providers.
At the same time, the board recognized respondent's arguments asserted in mitigation. Specifically, it pointed out that $600 in settlement funds were delivered to Ms. Bollinger in cash, and the remainder of the funds was paid in nineteen days. Also, respondent took a reduction in his legal fee, and the medical providers were ultimately paid. Moreover, it pointed out the settlement funds were not deposited in respondent's trust account upon a tax attorney's advice to avoid IRS seizure of the funds. The board maintained that, while it did not excuse or justify respondent's conduct, it did militate against the severity of
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