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In re Dumas6/7/2002
the sanctions to be imposed.
As aggravating factors, the board recognized respondent's prior disciplinary conduct, dishonest or selfish motive, vulnerability of the victim, substantial experience in the practice of law and imposition of other penalties or sanctions.
Relying on Standard 4.12 of the ABA's Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction was suspension. Applying jurisprudence from this court, the board deviated downward from the committee's proposed three-year suspension and instead recommended respondent be suspended for one year and one day, with six months and one day deferred, followed by a one year supervised probation. Two board members dissented finding the proposed sanction to be unduly lenient.
Both the ODC and respondent filed an objection to the board's findings and recommendation. As such, the matter was set on the court's docket for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 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 disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La. 11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La. 3/11/94), 633 So. 2d 150.
Based on our review, we conclude the record supports the committee's factual findings. The heart of respondent's disciplinary violation was his commingling of client and third party funds in violation of Rule 1.15. While respondent's decision to cash the settlement check and retain the funds may have been motivated by a desire to protect these funds from seizure by the IRS, there were alternatives available to him that would have protected the interests of all parties and would have allowed a timely disbursement of the funds to Ms. Bolinger and her healthcare providers.
Having found violations of the Rules of Professional Conduct, we now turn to a determination of an appropriate sanction for this misconduct. The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La. 10/27/00), 772 So. 2d 87; In re: Lain, 00-0148 (La. 5/26/00), 760 So. 2d 1152; Louisiana State Bar Ass'n v. Levy, 400 So. 2d 1355 (La. 1981). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La. 9/15/95), 660 So. 2d 839; Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La. 1984).
Respondent's misconduct created a strong potential of harm, because it exposed his client and the third party health care providers to the danger of losing their funds. His actions caused emotional and financial harm to his client. The baseline sanction for this misconduct is a suspension.
As aggravating factors, we recognize respondent's prior disciplinary record, substantial experience in the practice of law and the vulnerability of the victim. In mitigati
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