You are on page 1of 60

LOUISIANA ATTORNEY DISCIPLINARY BOA.KUF-__''''''''''""""'--.......

05-DB-085 c/w 08-DB-065


IN RE: FRED A. BLANCHE, III
RECOMMENDATION TO THE LOUISIANA SUPREME COURT
***********************************************************************
INTRODUCTION TO THE CONSOLIDATED MATTERS
The two consolidated cases are disciplinary matters initiated by the filing of formal
charges against the Respondent, Fred A. Blanche, III. Both sets of charges center upon Mr.
Blanche's handling of personal bankruptcy cases filed with the United States Bankruptcy
Court for the Middle District of Louisiana.
Mr. Blanche had a high-volume personal bankruptcy practice. He began his
bankruptcy law practice in the year 1986.
1
During the period in question in these disciplinary
cases, i.e., between April 1,2003 through the present time, Mr. Blanche was counsel in 4,784
bankruptcy cases?
By all accounts, Mr. Blanche handled the high volume of his practice competently for
many years. Mr. Blanche admits, however, that in the years 2006 and 2007, the quality of his
representation sharply declined. Mr. Blanche's wife had helped him manage his practice,
and according to Mr. Blanche's testimony, his practice was struck by three events around the
same time: "I lost my -my best employees. The law changed. My wife got sick. And that's
what happened to my practice.',3
One of Mr. Blanche's clients, Brandy Babin, complained about his representation
during an even earlier period of time than the one Mr. Blanche describes as pivotal for the
I Transcript of Hearing of Mar. 31, 2009, p. 332-333 (testimony of Fred Blanche, 1II)[this hearing was held in
connection with the second matter docketed as number 08-DB-065].
2 Transcript of Hearing of Mar. 31,2009, p. 332-333(testimony of Fred Blanche, 111).
3 Transcript of Hearing of Mar. 31,2009, p. 308(testimony of Fred Blanche, Ill).
1
decline in the quality of his representation. The Board has already reviewed the record of
that case (05-DB-085), and concluded that Mr. Blanche committed professional misconduct
by neglecting the bankruptcy representation of Brandy and Joseph Babin in late 2003 through
the early part of 2004. The record of that case (05-DB-085) was sent to the Supreme Court
with a recommendation that Mr. Blanche "be suspended from the practice of law for a period
of three months, with all but thirty days deferred" subject to a period of actively supervised
suspension.
After the record of 05-DB-085 was lodged with the Supreme Court, the ODC notified
the Court that it had received several other complaints relating to a later time period. Citing
the potential for threat of harm to the public, the Court suspended Mr. Blanche from the
practice of law on an interim basis while disciplinary matters were pending against him. The
Court also remanded the record relating to Mr. Blanche's handling of the Babin bankruptcy
representation back to the Disciplinary Board. The Court explained: "the matter bearing this
court's docket number 08-B-0107 [is] remanded to the disciplinary board for consolidation
with the pending investigative matters. After appropriate consideration of the consolidated
matters, the board is directed to issue a single recommendation of discipline to this court
encompassing all disciplinary matters involving respondent.,,4
After its investigation, on August 15, 2008, the ODC filed formal charges consisting
of five counts of alleged misconduct by Mr. Blanche:
Count I states that Mr. Blanche was repeatedly sanctioned by the Bankruptcy
Court for incompetent representation of numerous clients and the same Court
4 Order in In re Blanche, 08-B-OI07, 08-B-0257 (La. Sup. Ct. 2/13/08). The matter docketed at the Court as 08-
B-OI07 corresponds to the Disciplinary Board's number of05-DB-085.
2
suspended Mr. Blanche on May 16, 2007, from practicing there for a period of
18 months.
Count II states that while Mr. Blanche was suspended by the Bankruptcy
Court, he advised a former client (Womer Cruse) without permission of the
new client's attorney.
Count 1II states that Mr. Blanche was advised on November 28, 2006 of errors
in a Chapter 13 plan he had submitted on behalf of William Henry Brooks, III.
The judge ordered Mr. Blanche's attorney's fee reduced by $250 because of
the errors, but Mr. Blanche nevertheless submitted a request for attorney's
fees of$999.
Count IV states that Mr. Blanche was personally served with a subpoena
pursuant to the authority of the Louisiana Supreme Court, directing him to
appear before Disciplinary Counsel in connection with the investigation of
three complaints. Mr. Blanche failed to comply with the subpoena.
Count V indicates that Mr. Blanche represented Pamela Armstead 1ll a
bankruptcy proceeding, and that Mr. Blanche simultaneously represented Ms.
Armstead in a personal injury claim. Mr. Blanche settled the personal injury
case on Ms. Armstead's behalf for $14,000, though he never had proper
authorization from the bankruptcy trustee to settle the case. Moreover, Mr.
Blanche did not give the money to the trustee as part of the court-mandated
administration of Ms. Armstead's bankruptcy estate.
s
5 This second set of formal charges was docketed by the Board as No. 08-DB-065.
3
In his Answer filed September 24, 200S, Mr. Blanche admitted the allegations of
Count IV (failure to cooperate with ODC) as pleaded. Mr. Blanche admitted the allegations
of Count I (deficiencies in bankruptcy practice) and Count V (the Armstead matter) with
qualifications. Mr. Blanche denied the allegations of Count II (the Cruse matter) and Count
III (the Brooks matter). Mr. Blanche indicated further that mitigating factors existed, and
prayed "for such discipline as is appropriate under the circumstances."
After an evidentiary hearing, Hearing Committee No. 39 found that Mr. Blanche had
committed professional misconduct as alleged in all but Count IV of the five-count formal
charges.
6
The Committee recommended a suspension from the practice oflaw of three years.
Pursuant to the Court's direction that both cases should be considered together, ODC
has moved the Board to docket the first case (05-DB-OS5) with the second case (OS-DB-065)
for oral argument. The matters were in fact docketed as such for oral argument before Panel
"A" on January 25, 2010. In a separate Order issued in connection with this
Recommendation, the Board completes the formality of granting ODC's Motion because the
procedure prayed for in ODC's Motion directly conforms to the Court's instructions,
including the instruction for the Board to later issue a single Recommendation regarding both
cases (05-DB-OS5 and OS-DB-065), which the Board now issues.
Given this posture, this Recommendation summarizes the record of each case in turn,
and an appropriate sanction for both consolidated matters appears at the Analysis Section,
beginning at page 24.
7
6 The Committee found misconduct occurred as alleged in Count V, but not as to every specific rule violation
charged in Count V..
7 Because the first case, 05-DB-085 has once before been reviewed by the Board, a procedural history of that
case is not discussed in the body of this Recommendation, but is instead presented as Appendix A. The salient
procedural events from the second case, 08-DB-065, have been discussed in the Introduction.
4
THE FORMAL CHARGES
(Case Number 08-DB-065)
The formal charges in this matter read, in pertinent part, as follows:
COUNT I
Between April 1, 2003 and May 16, 2007 you were engaged in the active
practice of law in the U.S. Bankruptcy Court, Middle District of Louisiana.
During that period of time you were the subject of numerous and repeated
rules and/or orders to show cause involving approximately sixty five different
bankruptcy cases. These rules and/or orders to show cause involved repeated
varied and diverse incidents of improper conduct on your part including, but
not limited to: failures to pay filing fees; failures to comply with trustee's
requirements; failures to appear in court and failures to file documents. These
rules and/or orders to show cause resulted in financial sanctions and/or
fee/cost disgorgements being ordered against you approximately thirty seven
times. The credit card that you used to pay filing fees was declined on
approximately eight different instances between November 7, 2006 and
November 30, 2006. On November 21, 2006 your electronic password was
ordered disabled, and you were ordered to provide a valid credit card to the
court (you had been using your mother's credit card). On May 16, 2007, after
a bankruptcy court show cause proceeding in which you participated, it was
ordered that, effective Juue 29, 2007, you were suspended from practicing in
and appearing before the U.S. Bankruptcy Court for the Middle District of
Louisiana for a period of eighteen months. The written order was issued on
May, 17,2007.
You failed to provide competent representation to clients in violation of RPC
1.1 a . You failed to act with diligence and promptness on behalf of clients in
violation of RPC 1.3. You failed to properly handle and use funds entrusted to
you to pay clients' filing fees in violation of RPC 1.15. You have failed to
properly supervise your non-lawyer employees in violation of RPC 5.3. You
have engaged in conduct involving dishonesty, fraud, deceit or
misrepresentation in violation of RPC SA(c). You have engaged in conduct
that is prejudicial to the administration ofjustice in violation of RPC SA(d).
COUNT II
On April 19, 2007 you filed a Chapter 13 bankruptcy proceeding for Womer
Cruse, number 07-10511 in the U.S. Bankruptcy Court, Middle District of
Louisiana. On May 17, 2007the U.S. Bankruptcy Court, Middle District of
Louisiana, issued a written order immediately barring you from filing any new
bankruptcy cases, and suspending you from practicing in and appearing before
said bankruptcy court for a period of eighteen months commencing on June
29, 2007. After May 17, 2007, but prior to Juue 29, 2007 your law office
prepared bankruptcy documents and/or pleadings for Mr. Cruse, which he
5
filed pro se on or about July 6, 2007. On or about July 11, 2007 Mr. Cruse
obtained new counsel, Derren Johnson to represent him in his bankruptcy
proceeding. After Mr. Cruse had obtained Ms. Johnson as counsel in his
bankruptcy proceeding, but before January 9, 2008, without permission from
Ms. Johnson, you spoke with Mr. Cruse about his bankruptcy, and prepared a
plan or strategy for proceeding with his bankruptcy for him to take to Ms.
Johnson to implement. On January 10, 2008 an Order to Show Cause was
issued in Mr. Cruse's bankruptcy case ordering you to appear. On February
13, 2008, after the bankruptcy court show cause proceeding in which you
participated, it was ordered that, effective immediately you were permanently
barred from filing any proceeding in, practicing in and appearing before the
U.S. Bankruptcy Court for the Middle District of Louisiana; and from giving
any legal advice in connection with, or in contemplation of, a bankruptcy case
before said court. The written order was issued on February, 25, 2007.
You have with and advised a former client, whom you knew to
be represented by other counsel, about the subject matter of the representation,
without the consent of the former client's current counsel in violation of RPC
4.2 (a). You have failed to properly supervise your non-lawyer employees in
violation ofRPC 5.3. You have engaged in the unauthorized practice oflaw in
violation of RPC 5.5 (a) . You have engaged in conduct that is prejudicial to
the administration ofjustice in violation ofRPC 8.4 (d) .
COUNT III
On July 28, 2006 you filed a Chapter 13 bankruptcy petition for William
Henry Brooks, III in the U.S. Bankruptcy Court, Middle District of
Louisiana. On November 28, 2006 you were advised of errors in the Chapter
13 plan which you needed to correct. On December 6, 2006 a scheduled
hearing was continued to December 20, 2006 because you had not made those
corrections to the Chapter 13 plan. On December 20, 2006 the hearing was
continued to January 10, 2007, and your attorney's fee was ordered reduced by
$250.00, because you had not made those corrections to the Chapter 13 plan.
On January 10, 2007 Mr. Brooks' bankruptcy case was dismissed at your
request. The written order was issued on January, 11,2007, and required the
Trustee to return all funds in her possession to the debtor, Mr. Brooks. On
January 10, 2007 you faxed a hastily prepared Motion for Payment of
Attorney's Fee Out of Undistributed Funds Held By The Trustee. Your
Motion prayed for a fee of $999.00, claimed that you had complied with all of
your obligations to Mr. Brooks, and failed to include any mention of the
December 20, 2006 order reducing your attorney's fee.
You failed to act with diligence and promptness on behalf of Mr. Brooks in
violation of RPC 1.3. You have failed to properly supervise your non-lawyer
employees in violation of RPC 5.3. You have engaged in conduct involving
dishonesty, fraud, deceit or misrepresentation in violation of RPC 8.4 (c) .
You have engaged in conduct that is prejudicial to the administration of
justice in violation ofRPC 8.4(d).
6
COUNT IV
On April 8, 2008 you were personally served with a subpoena, issued pursuant
to the authority of the Supreme Court Of Louisiana, ordering you to appear
before Disciplinary Counsel at 10:00 A.M. on April 17, 2008 to testify and to
produce documents in the investigation into three complaints filed against
you, including the complaint of William H. Brooks (Count III, supra) and the
matter of your being permanently barred from bankruptcy court (Count II,
supra). You failed, neglected, or refused to appear pursuant to the subpoena;
and failed, neglected, or refused to produce the required documents.
You have obstructed Disciplinary Counsel's access to evidence in violation of
RPC 3.4(a). You have disobeyed an obligation under the rules of a tribunal in
violation of RPC 3.4(c). You have failed to cooperate in a disciplinary
investigation in violation of RPC 8.1 (b) (c) . You have engaged in conduct
prejudicial to the administration ofjustice in violation of RPC 8.4 (d) .
COUNT V
On June 13, 2006 you filed a Chapter 13 bankruptcy petition for Pamela
Armstead in the U.S. Bankruptcy Court, Middle District of Louisiana. On or
about July 13, 2006 you notified Travelers Insurance that you would be
representing Ms. Armstead in her December 15, 2005 personal injury claim.
The personal injury claim was not listed in Ms. Armstead's bankruptcy
petition or schedules, and you had not obtained the required authorization to
represent Ms. Armstead in her personal injury claim from the Bankruptcy
Trustee. On August 16, 2006, at the meeting of creditors the Trustee learned
of Ms. Armstead's personal injury claim. By letter dated August 21, 2006 the
Trustee's office sent you a sample of the motion required in order for you to
obtain authorization to represent Ms. Armstead, and receive a fee, in her
personal injury claim. By letter dated October 5, 2006 the Trustee's office
again contacted you about the matter. You failed to file the required motion to
obtain the required authorization to represent Ms. Armstead, and receive a fee,
in her personal injury claim. You settled Ms. Armstead's personal injury
claim. On December 4, 2006 Travelers insurance issued settlement checks
totaling $14,000.00 as follows: $705.46 to Lane Memorial Hospital; $750.00
to Shameka Armstead; $750.00 to Tameka Armstead; and $11,794.54 to
Pamela Armstead. You received Pamela Armstead's $11,794.54. You gave
Ms. Armstead $7,864.00 in cash, in two payments, and retained $3930.54 as
your fee. You failed to properly deposit and disburse Pamela Armstead's
$11,794.54 settlement proceeds through your trust account, and failed to keep
or maintain the records of this transaction required by LaS.Ct. Rule XIX,
Section 28A. The Trustee's office continued to contact you about Ms.
Armstead's personal injury case. On January 23, 2007 you obtained from your
mother, Polly P. Blanche, a check for $13,000.00 made payable to Aunette C,
Crawford. Ms. Crawford is the Chapter 13 Bankruptcy Trustee for the U.S.
7
Bankruptcy Court, Middle District of Louisiana. On January 25, 2007 you
presented your mother's check to the Trustee's office for Ms. Armstead's
bankruptcy.
You failed to provide competent representation to a client in violation of RPC
I I a . You failed to act with diligence and promptness on behalf of a client in
violation of RPC 1.3. You failed to properly handle, and maintain records of,
a bankruptcy client's personal injury settlement funds in violation of RPC
LIS. You have failed to comply with the bankruptcy court's rules relating to
personal injury cases in violation ofRPC 3.4 (c) . You have failed to properly
supervise your non-lawyer employees in violation of RPC 5.3. You have
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in
violation of RPC 8.4 (c) . You have engaged in conduct that is prejudicial to
the administration ofjustice in violation of RPC 8.4(d).
THE HEARING COMMITTEE REPORT
(Case Number 08-DB-065)
On December 8, 2009, the Committee made the following findings of fact and of
rules transgressions stemming from the formal charges:
COUNT 1 - THE BANKRUPTCY COURT COUNT
Count I is not a client specific count but rather pertains to Mr.
Blanche's conduct as a whole in connection with his Bankruptcy Court
practice from April 1,2003 to Mayl6, 2007, the day before his suspension by
Judge Dodd. The essence of Count I is that respondent, not with respect to
any particular case per se, but in the context of his total practice in various
matters, violated the Rules of Professional Conduct by engaging in repeated
actions which constituted "repeated varied and diverse incidents of improper
conduct on his part including, but not limited to: failures to pay filing fees,
failures to comply with trustee's requirements; failures to appear in court and
failures to file documents" (ODC Pre-Trial Memorandum, P.IO) The Count
also refers to multiple instances in which his credit card was declined and
notes that his electronic password was disabled as a result thereof.
ODC also contends in its pre-trial memorandum that Mr. Blanche's
response to Count I is in essence an admission as to the facts on which the
Count is predicated. ODC's position is that while Mr. Blanche disagrees with
the assertions in the formal charges that his conduct violated the specific rules
as alleged, his response is nevertheless in the nature of an admission as to the
factual underpinnings of Count 1.
Having reviewed the response filed by Mr. Blanche as to Count 1, the
committee agrees with ODe's position concerning the admission of the
predicate facts. It should be.noted though that the record from the Bankruptcy
8
Court is detailed and there is really no doubt that the show cause orders were
issued, that Mr. Blanche's password was disabled requiring him to file in
person, or that respondent missed multiple creditor hearings, etc. Both Ms.
Crawford and Ms. Elizabeth Hager, Chief Deputy Clerk for the Bankruptcy
Court, testified on these matters. Their testimony was both credible and
unrebutted by respondent.
The real issue according to Mr. Blanche is whether these instances of
conduct amount to misconduct warranting discipline or whether, as Mr.
Blanche suggests, these show cause orders and sanctions simply reflect the
procedure with which Judge Dodd regulates the normal practice in his Court.
On this point the testimony of Ms. Crawford, the Chapter 13 Bankruptcy
Trustee for the Middle District is significant She testified at the hearing as
follows:
BY MS. FONTENOT:
Q. The count filed by the ODC indicates that there were 65 show
cause orders. Are those you or are those Chapter 7?
A. They could be either. I know that there were a number in the
Chapter 13. They could be requests by me or it could be requests by the court.
The court issues their own orders to show cause. I generally wouldn't do that
unless there was a lack of appearance at a hearing, or - and that's mainly the
ones he got from me, if there was a hearing and he didn't appear. I know that
the judge initiated many of those on his own.
Q. Do you know how many of the 65 were you and how many of
them were from the judge?
A. I would just be guessing, but I would say maybe 15 to 20 of
them were mine. And then the rest would be initiated by the judge.
Q. Compared to the other attorneys practicing in front of you,
especially the ones with the case loads similar to his, is that a disproportionate
number of show cause, or does everybody pick some citations up during the
year?
A. No. There -- there are like one or two attorneys that pick them
up, you know, on a regular basis. People who don't file as many cases, maybe
only file two or three a month and never really get into the practice, there are
always some issues. But as a main filer, which he was one of three at the time,
1 would consider main filers, you know, that probably between the three of
them were 80 percent of the practice. And it was not-that was- that's an
above average number.
Q. And the 37 financial sanctions, same question. Is that
comparable to other attorneys or - is it slightly high, or is that off the chart? I
mean, is that -
9
A. For that time period, I would say it was off the chart.
[T. 243, L.2 - T.244, L.21](Emphasis Added by the Committee),
The testimony of Ms. Crawford and Mr. Blanche both reflect that
Judge Dodd does in fact use the mechanism of show cause orders to regulate
practice in his court. This not the real inquiry though. The real inquiry is not
whether this was a mechanism employed in the court as a matter of practice;
but rather, whether respondent was neglecting his practice in that court such
that he found himself the object of these show cause orders on a routine basis.
The testimony of Ms. Crawford makes clear that the number of show
cause orders issued to Mr. Blanche was high for someone who was considered
to be one of the three main filers. Moreover, the 37 financial sanctions levied
by Judge Dodd is clearly indicative of a widespread problem which was not
endemic in the court at large but rather confined to respondent's practice
during the time frame at issue. It cannot be overlooked that Judge Dodd
himself felt that Mr. Blanche's conduct warranted suspension from the
Bankruptcy Court in the Middle District of Louisiana for 18 months, a
suspension that Judge Dodd handed down on May 17, 2007.
Judge Dodd's opinion, in evidence as ODC 3 (Bates numbered 246
through 275) is very detailed and Judge Dodd makes clear that Mr. Blanche's
behavior was not the norm. Likewise, the document introduced as ODC 4
which contains a summary of all of the show cause orders issued is detailed
and does, in the committee's opinion, evidence a pattern of repeated neglect of
matters in the Bankruptcy Court by respondent. Based on the testimony of Ms.
Crawford, Ms. Hager and the respondent as well, the committee finds as a
matter of fact that there was, as alleged by ODC, a pattern of neglect
involving a significant number of cases in the Bankruptcy Court such that a
violation of the rules did in fact occur as alleged by ODC. Specifically, the
committees finds as a matter of fact as follows with respect to Count I:
(l) That approximately 65 show cause ordered were issued during the time frame
as alleged in the Formal Charges;
(2) That 37 financial sanctions were levied by Judge Dodd against respondent;
(3) That Mr. Blanche's password was disabled specifically as a result of multiple
declined charges pertaining to filing fees;
(4) That Mr. Blanche's filings were frequently deficient in a variety of respects
requiring court personnel to intervene and expend time and resources assisting
in correcting routine filings;
(5) That Mr. Blanche employed his wife, Karen (a non-lawyer), to handle filings
as part of his practice;
(6) That personnel in the Clerk's office witnessed behavior in respondent's wife
indicative of some type of impairment;
10
(7) That during the operative time frame in Count I Mr. Blanche had actual or
constructive knowledge of his wife's infirmity as well as the multiple
instances of filing deficiencies allegedly related thereto;
(8) That respondent himself missed multiple hearings and meetings in his client's
cases during the operative time frame as alleged in Count I.
ALLEGED RULE VIOLAnONS I MISCONDUCT (COUNT I)
The burden is on ODC to prove by "clear and convincing evidence"
each allegation of misconduct it has made against Mr. Blanche.
4
Respondent
is charged with violations of Rule U(a) (failing to provide competent
representation), Rule 1.3 (failure to act with diligence and promptness), Rule
U5 (failure to properly handle and use funds entrusted to the client), Rule
5.3 (failure to properly supervise non-lawyer
4 See e.g. Louisiana Supreme Court Rule XIX $ 18(C) ("Standard of Proof. Formal Charges
of
misconduct ...shall be established by clear and convincing evidence."); See also, In Re Ouaig,
646 So.2d 343, 348 (La. 1994).
employees), Rule 8A(c) (engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation), and Rule 8A(d) (engaging in conduct
prejudicial to the administration ofjustice). Each of these is discussed in
turn.
Rule U(a) states:
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for that representation,
It is the opinion of this committee that ODC has carried its burden of
proof with respect to the alleged violation of Rule U(a) in Count I. While the
record reflects that respondent possesses the requisite knowledge and skill, the
record likewise establishes that there was a lack of thoroughness and
preparation with respect to his bankruptcy filings with the time period set
forth in Count 1 and further that the frequency and repetitive nature of the acts
and omissions further evidences a pattern of neglect.
Rule 1.3 requires that a lawyer "act with reasonable diligence and
promptness in representing a client" and this committee feels that with respect
to this alleged misconduct, ODC has likewise carried its burden.
It should be noted at this juncture that quite a bit of testimony at the
hearing in this matter dealt with issues pertaining to respondent's wife, Karen.
Since the issue was addressed at the hearing, and given that certain of the
colloquy between the respondent and certain of the witness as well as certain
exhibits were sealed to protect his wife's privacy, a detailed recitation of these
11
facts is not warranted herein. That being said, however, respondent himself
testified that in his opinion "[something happened to my wife in 2003" [T.
128, L. 19-20] which respondent was well aware of that prevented her from
functioning in the capacity that she was employed in. In fact, respondent
admits that he hired someone to assist for this very reason in 2004 and the
situation was ameliorated up and through this individual's departure in late
2005. [T. 133, L. 24 - T. 134, L.18]. When this individual left though
respondent admits that his practice again declined.
It is not clear whether Mr. Blanche is proffering evidence of his wife's
condition as an explanation or as a defense. What is clear though, and what
this committee concludes, is that this is not a situation in which an employee
makes a mistake or engages in other conduct which causes harm that the
lawyer was unaware of until after the fact. Rather, the committee finds that the
facts presented here fall within the situation contemplated by Rule 5.3 of the
Rules of professional conduct when it refers to conduct by a non-lawyer
which the lawyer in a supervisory position knows of and further "knows ofthe
conduct at a time when its consequences can be avoided or mitigated butfails
to take remedial action. " Rule 5.3 provides that the lawyer in such instances
shall be responsible for the non-lawyer's conduct. Therefore, based on the
facts adduced and the admissions made by respondent, the committee finds as
well that ODC has carried its burden with respect to the establishing of a
violation of Rule 5.3.
With respect to the remaining alleged Rule violations, the committee
feels that clearly given the amount of cases involved, the delays associated
therewith, the resources including time spent by court personnel rectifying
deficient filings and the amount of judicial intervention involved, it would be
hard not to conclude that respondent engaged in conduct prejudicial to the
administration of justice in violation of Rule 8.4(d). Where the committee
feels that ODC did not carry its burden was in establishing the alleged
violation of Rules 1.15 (on this particular count) and Rule 8.4(c) which is
conduct involving dishonesty, fraud, deceit or misrepresentation. In fact, Ms.
Crawford when questioned on the issue of dishonesty, fraud and the like
offered favorable testimony concerning respondent and the committee feels
that this is a case of neglect, not a case of dishonesty or fraud.
COUNT 2 - THE WORNER CRUSE BANKRUPTCY MATTER
Unlike the previous count, Count II of the Formal Charges pertains to
a specific matter, a Chapter 13 Bankruptcy petition by Worner Cruse ("Mr.
Cruse"). The record reflects that the matter was commenced on April 19, 2007
in the Middle District by Mr. Cruse through counsel, Mr. Blanche. The filing
of this petition occurred less than a month before respondent's suspension by
Judge Dodd. The operative dates are significant because while Judge Dodd's
ruling suspending respondent from the Middle District was handed down on
May 17,2007, it was suspensive in nature and did not actually take effect until
June 29, 2007.
12
After the suspension took effect, Mr. Cruse retained other counsel, Derren S.
Johnson ("Ms. Johnson"), in counection with the bankruptcy filing. This was
done on or about July 11,2007. According to Ms. Johnson in her testimony at
the hearing, she became aware that Mr. Curse (sic.) was getting advice
concerning his bankruptcy from some other source. Specifically, Ms. Johnson
testified as follows:
BY MR. BLANCHE:
Q. Is it fair to say that Mr. Cruse had been trying for a month to get you to
respond to the motion for relief from the automatic stay where the
mortgage company wanted to get permission from the bankruptcy
judge to foreclose on his home?
A. No, sir. I don't think that's a fair statement at all. The problem I was
having with Mr. Cruse was that I could not get the information or the
documentation that I needed from Mr. Cruse to prepare the necessary
pleadings of any kind for him with regard to the motion to lift the stay.
because he was telling me that I didn't need that documentation
because he was told that I did not need that documentation. So the fact
that he was receiving advice from some other source impeded mv
ability to represent Mr. Cruse with respect to that matter. So as soon as
that stopped happening, Mr. Cruse's matter was quickly resolved '"
[T. 20. L. 10 - T.2L L.5l(Emphasis Added)
The record further reflects that at some point Mr. Cruse showed up at Ms.
Johnson's office with a handwritten note outlining a modified plan. The
handwritten document, admitted into evidence as ODC 7, clearly reflects what
can only be construed as an outline for a modified plan in bankruptcy and
respondent has admitted to preparing the document.
5
In his testimony before
the committee Mr. Blanche testified as follows with respect to the Cruse
matter:
"I mean, there was no question about who confected that note. I suppose
I knew that I was going to get into trouble for it. I thought I could
explain it to the judge, though, that it didn't come from any motive to
interfere with her relationship with Mr. Cruse but only to let them know
that there was a basis for an amendedplan... "
[T. 176, L. 6-14]
Later in his testimony, respondent explains that while he was certainly
guilty of talking to another lawyer's client, "it was for a good reason." [T.
169, L. 9-14]. Thus, it is clear to this committee from a factual standpoint that
respondent did in fact prepare ODC 7 which is clearly an amended plan while
suspended from the practice of law in the Bankruptcy Court. It is also clear
that while Mr. Blanche was technically representing Mr. Cruse on a separate
matter, he nonetheless communicated with Mr. Cruse about the substance of
the bankruptcy matter while Mr. Cruse was represented by other counseL
13
This communication was without Ms. Johnson's approval and consent and
constitutes a technical violation of Rule 4.2(a) of the Rules of Professional
Conduct. Likewise, ODC
5 Respondent admitted preparing the document during Ms. Johnson's testimony before
being sworn (See Transcript at T.SS, L. 3-8) and later on direct at T. 167, L6-14.
as proven by "clear and convincing evidence" that respondent engaged in the
practice of law while suspended by drafting an amended plan for Mr. Cruse.
ALLEGED RULE VIOLATIONS / MISCONDUCT (COUNT II)
In this count, Count II, respondent is charged with violations of Rule
4.2(a) (communication with a person represented by counsel), Rule 5.3
(failure to properly supervise a non-lawyer employees), Rule 5.5(a) (engaging
in the unauthorized practice of law), and Rule 8.4(d) (engaging in conduct
prejudicial to the administration ofjustice). Like before, each is discussed in
turn.
Rule 4.2 of the Rules of Professional Conduct proscribes contact with
a person known to be represented by counsel about the subject matter of the
representation unless "the lawyer has the consent of the other lawyer or is
authorized to do so by a court order.!" RPC 4.2(a). The committee finds that
respondent did in fact communicate with Wamer Cruse, his former client,
about the subject matter of his bankruptcy while he was represented by Ms.
Jolmson. Moreover, the testimony is clear that Ms. Johnson did not authorize
this and that there was no court order authorizing said communication.
Mr. Blanche's communication with Warner (sic.) Cruse about his
Chapter 13 filing occurred not only during the course of Ms. Johnson's
representation but also occurred during the term of respondent's suspension.
Thus, not only was there no court order allowing the communication, but
since the communication was in the nature of legal advice, there was actually
a court order barring such communication. Clearly Judge Dodd was not
amused as this was the factual predicate for Mr. Blanche's permanent
disbarment from practice in the Bankruptcy Court. (See Order of Judge Dodd.
dated 2-25-2008 in evidence at ODC-l 0).
The committee appreciates that Respondent's motivation may not have
been to interfere in any way with Mr. Cruse's proceeding or with Ms.
Johnson's representation of Mr. Cruse and was more likely than not an act
stemming from a sincere effort to help Mr. Cruse. The rule, as the committee
reads it, does not contain a motivational qualifier. As such, while Mr. Blanche
may not have violated the spirit of the rule, he nevertheless technically
violated the rule. Ms. Johnson has testified that in fact, respondent's intent
notwithstanding, Mr. Blanche did as a matter of fact have an adverse affect on
her representation of Mr. Cruse even if ultimately this did not palpably harm
the client.
Given the above, the committee finds that ODC has carried its burden
of establishing by clear and convincing evidence that respondent violated
14
Rules 4.2(a) and 5.5(a) and that, with respect to the violation of Rule 5.5(a)
only, that said conduct warrants discipline. Further, although the effect may
have been minimal, the committee also finds that respondent violated Rule
8.4(d) as well. Respondent has of course been sanctioned severely for these
violations already and this will be discussed herein below but the committee
does find that the violations occurred. As to the remaining alleged rule
violation, that of Rule 5.3, the committee finds that with respect to the Cruse
matter, this Rule was not violated. The predicate acts involve Mr. Blanche's
conduct directly not vicariously and as such ODC has not carried its burden
on this alleged violation.
COUNT III - THE BROOKS BANKRUPTCY MATTER
Like Count II of the Formal Charges, this count, Count III, pertains to
a specific matter, a Chapter 13 Bankruptcy petition by William Henry Brooks
("Mr. Brooks"). Unlike some of the other counts in which respondent has
admitted rule violations and or misconduct, respondent denies all allegations
as set forth in this count and has maintained that position throughout this
proceeding.
The record reflects that the Brooks matter was commenced on July 28,
2006 in the Middle District by Mr. Brooks through counsel, Mr. Blanche. The
docket report in this matter, admitted at the hearing as ODC 14, details the
progress of the case. It is noted that the filing fee was paid by Mr. Blanche. It
is also noted that there do appear to be several deficiencies in the schedules
but that these were promptly corrected.
In his testimony to this hearing committee, Mr. Brooks complained
about continuances and alleged harm as a result of having to take off work to
attend hearings which were, after appearing, continued for one reason or
another. Unlike some of the cases at issue in Count I however, the record
reflects that respondent was in court with Mr. Brooks and that many, if not all,
of the problems having to do with Mr. Brooks' case were not the result of Mr.
Blanche's actions, but rather Mr. Brooks' actions.
By way of example, the docket sheet indicates that a continuance in
Mr. Brooks matter was ordered by the trustee, Annette Crawford (Rec.Doc.
12, ODC II at Bates Page 389) early in the proceedings; however, the
notation thereafter indicates that the continuance was a result of the fact that
Mr. Brooks' domestic support obligation payments were not current at the time
of the hearing nor at the next hearing on September IS. (Rec.Doc. 13). It
would appear that Mr. Brooks was not current on his payments for child
support during the operative time period and further that as a result of this the
U.S. Trustee filed a "Notice ofIneligibility to Receive Chapter 13 Discharge"
barring Mr. Brooks' discharge. (Rec. Doc. 25, contained in ODC 14).
The docket sheet reflects the filing of multiple amended plans, court
appearances, at which Mr. Blanche was present. The overall thrust of the
record is that Mr. Brooks was never current on his obligations and this was the
reason for the dismissal of his case on January II, 2007. There does not
15
appear to be any nexus between the actions of respondent and the dismissal of
Mr. Brooks' case. At the hearing in this matter Ms. Crawford testified that a
debtor needs to be current to get a plan confirmed and this testimony is
consistent with the record.
While it is true that Judge Dodd ordered a fee disgorgement of $
250.00 as a sanction for a filing deficiency, this sanction would be
encompassed within the scope of those considered by the committee in Count
1. There was no testimony to indicate that as a standalone matter (meaning had
this not been one of many) respondent would have been sanctioned for his
conduct in this matter alone. Since this was filed as a separate charge, it must
be considered as such.
ALLEGED RULE VIOLATIONS I MISCONDUCT (COUNT III)
With respect to the handling of Mr. Brooks' matter, respondent is
charged with violations of Rule 1.3 (failure to act with diligence and
promptness), Rule 5.3 (failure to properly supervise non-lawyer employees),
Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation), and Rule 8.4(d) (engaging in conduct prejudicial to the
administration of justice). As was mentioned above, unlike certain of the
counts, respondent denies outright any rule violations warranting discipline
arising from his handling ofthe Brooks matter.
As a matter of fact, the committee finds that while the docket report in
this matter indicates that there were deficiencies with respect to Mr. Brooks,
there is no evidence to indicate that these deficiencies were as the result of any
particular failure on respondent's part to act with due diligence in representing
Mr. Brooks. In fact, the record reflects that Mr. Blanche was engaged in the
active representation of Mr. Brooks, attended multiple hearings with Mr.
Brooks and filed amended plans in an attempt to help Mr. Brooks through the
bankruptcy process. The committee further finds that the dismissal of Mr.
Brooks' Chapter 13 Bankruptcy was directly related to Mr. Brooks' failure to
pay his obligations thus preventing confirmation of his planes) as drafted by
respondent. As such, with respect to the allegations of Count III, the
committee concludes that ODC failed to carry its burden of proof as to the
alleged violations by Mr. Blanche of Rules 1.3, 5.3, and 8.4(d).
As the committee understands the allegation made by ODC in this
count, Count III, concerning respondent's alleged violation of Rule 8.4(c), the
allegedly actionable conduct stems from the $ 999 dollar fee application
submitted to Judge Dodd, ex parte, relative to Mr. Brooks' case. The
implication here is that in light of the $ 250.00 reduction in this case, Mr.
Blanche's application should have been reduced by another $ 250.00 and that
Mr. Blanche's ex parte "hastily prepared" fee application was submitted to
Judge Dodd in the hopes of deceiving the court into awarding a higher fee
than Mr. Blanche was entitled to.
The committee disagrees with this characterization of the fee
application. There was testimony at the hearing that the standard fee in a
16
Chapter 13 bankruptcy case is $ 2,500.00. The fee reduction Ordered by Judge
Dodd preceeded the date on which respondent's fee application was submitted
and at the time it would appear that Judge Dodd was ruling based on an
assumption that the plan would actually be confirmed and the full fee
awarded. After the matter was dismissed for reasons having nothing to do
with Mr. Blanche, rather than seek a full fee, Mr. Blanche himself limited his
fee to $999.00 which is the cut off for having a fee awarded ex parte. The fact
that the fee was awarded ex parte however does not mean that it was
automatic. As Ms. Johnson and respondent both testified, Judge Dodd still
reviews each and every fee application and respondent was well aware of that
fact. The fee was awarded and the committee concludes that ODC failed to
carry its burden on this instance of alleged misconduct.
COUNT IV - THE OBSTRUCTION COUNT
Count IV can be disposed of rather easily by the committee. The
allegation is that on April 8, 2008 respondent was personally served with a
subpoena, issued pursuant to the authority of the Supreme Court of Louisiana,
ordering respondent to appear before Disciplinary Counsel at 10:00 A.M. on
April 17, 2008 to testify and to produce documents in the investigation into
three complaints filed against respondent, including the complaint of William
H Brooks (Count III, supra) and the matter of respondent's being permanently
barred from bankruptcy court (Count II, supra). Respondent did not appear
and has admitted the allegations of misconduct in Count IV. As such, the
committee does not address the sufficiency of the violations since they have
been admitted outright.
COUNT V - THE ARMSTEAD MATTER
The final count contained in the Formal Charges involves respondent's
representation of one Pamela Armstead. The record in this matter establishes
that Pamela Armstead filed a voluntary petition for Chapter 13 bankruptcy on
June 13, 2006. (ODC 19). According to the initiating petition, the attorney
representing Ms. Armstead was respondent, Mr. Blanche. (See ODC 19, Bates
#416).
Admitted into evidence as ODC 20 is a letter of representation dated
exactly one month later advising Ms. Sally Gilmore of the Travelers of Mr.
Blanche's representation of Ms. Armstead in counection with a civil cause of
action arising from a motor vehicle accident which occurred on December 15,
2005. What is interesting about the letter of representation is not that it was
sent on Mr. Blanche's letterhead, but rather that it was directed to a specific
adj uster and references a specific claim number. These facts preponderate in
favor of a finding that this was not the first communication had with the
Travelers relative to this claim. What this means is that the filing of the
bankruptcy and the date on which work was commenced on the civil action
were even closer in time to one another than the documents reflect.
17
According to the testimony and the exhibits in evidence, the trustee,
Ms. Crawford, became aware of the claim against the Travelers at one of the
early meetings in Ms. Armstead's bankruptcy. Thus, as of the date of this
meeting, respondent or his office would certainly have been aware of the fact
that the Pamela Armstead in bankruptcy and the Pamela Armstead on the civil
side were one and the same. The committee makes note of this because
respondent at the hearing and in his response to the Formal Charges indicates
that he was unaware that these two Pamela Armsteads were the same person.
The committee finds respondent's testimony in this regard not credible and
further finds that respondent had actual knowledge that he represented Ms.
Armstead both in the bankruptcy proceeding and with respect to the civil
claim contemporaneously.
From this point forward, the facts are not seriously in dispute. There
was credible testimony by Ms. Crawford at trial that a packet was sent to Mr.
Blanche which would have enabled him to be approved to represent Ms.
Armstead in the civil suit with the Bankruptcy Court's approval. The
committee finds as a matter of fact based on the record that approval was not
sought or approved. Moreover, respondent as an attorney with an active
bankruptcy court practice, would have known of the requirement for approval
and thus his failure to seek such approval was knowingly done.
The committee finds as a matter of fact that a settlement was obtained
in the Armstead Civil matter by either Mr. Blanche or his son, Louis, in the
amount of $ 14, 000.00 with the Travelers. The committee further finds that
when the settlement monies were tendered by the Travelers to Mr. Blanche
that he in turn deposited client funds directly into his operating account as
opposed to segregating those funds in his client trust account as is required
under Rule 1.15.
ALLEGED RULE VIOLATIONS I MISCONDUCT (COUNT V)
Respondent is charged in this count, Count V, with violations of Rule
1.1(a) (failing to provide competent representation), Rule 1.3 (failure to act
with diligence and promptness), Rule 1.15 (failure to properly handle and use
funds entrusted to the client), Rule 3A(c) (failure to comply with the
bankruptcy court's rules concerning representation of debtors in personal
injury cases), Rule 5.3 (failure to properly supervise non-lawyer employees),
Rule 8A(c) (engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation), and Rule 8A(d) (engaging in conduct prejudicial to the
administration ofjustice). Each of these is discussed in turn.
Rule 1.1(a) states:
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for that representation.
Rule 1.3 states:
18
A lawyer shall act with reasonable diligence and promptness in representing a
client.
The committee does not feel that ODC carried its burden with respect
to these alleged rule violations. In fact, given the nature of the injuries
apparently sustained in the Armstead matter, it would appear that the
settlement garnered by respondent's office on the civil claim was an excellent
recovery for Ms. Armstead. The committee feels that it was not the recovery
obtained that was respondent's downfall but rather the fact that respondent did
not obtain permission to represent Ms. Armstead and later failed to properly
handle his client's funds. To the extent that the commingling and conversion
of funds of Ms. Armstead impacted the bankruptcy proceeding, it is noted by
the committee that Ms. Crawford testified at the hearing that Ms. Armstead
was not prejudiced in any way insofar as her bankruptcy case was concerned.
That being said, respondent has admitted to violating Rules 1.15 and
3.4(c). There is no real question about whether there was a violation as the
documents clearly show that Mr. Blanche did not deposit the monies obtained
into his client trust account nor did he actually remit the monies to the
bankruptcy court. Since there is some interplay between the violations of 1.15,
3.4(c) and 8.4 it is worth highlighting what actually transpired. To this end,
the testimony of the Chapter 13 trustee, Ms. Crawford is significant. She
testified on this issue as follows:
BY MR. OURS:
Q. Now, in the Armstead case, you did find out about the lawsuit at the
creditors meeting; is that correct?
A. Right.
Q. Mr. Blanche was present at the creditor's meeting?
A. Yes, sir.
Q. And you discussed the lawsuit and the bankruptcy with Mr. Blanche at
that time?
A. Yes.
Q. And you subsequently - did you send him the packet offorms?
A. Yes.
Q. And he's been a bankruptcy attorney for a significant period of time,
correct?
A. Correct.
Q. He knew he had to fill out these forms and enroll in this case,
correct?
A. Correct.
Q. And there came a subsequent period of time where that lawsuit settled.
Did the bankruptcy court get their forms back that you sent?
19
A. No.
Q. Did the bankruptcy court get any notice of settlement or any documents
for him to get the settlement approved?
A. No.
Q. Did you know it had settled?
A. No.
[T.207,L.21-T.209,L.3]
Not only was respondent not authorized by the bankruptcy court to
handle the matter but the settlement was not approved nor even the existence
of a settlement communicated to the trustee. It was not until Mr. Blanche
brought settlement proceeds to the office that Mr. Crawford was even made
aware of the settlement. According to Ms. Crawford:
Q. Okay. The settlement proceeds that he [respondent] brought in,
that was a check from his trust account?
A. No. It was a check from his mother's account.
[T.210.L.12-L. 16]
The import of this testimony in the committee's opinion is that not
only was there commingling of client funds but also a temporary conversion
of funds. Had Mr. Blanche preserved the funds, presumably he would have
simply written the check from his operating account where he deposited the
funds initially. The fact that he had to borrow these funds to make the
restitution evidences conversion as well as commingling.
Rule 8.4 states that it is misconduct to "[e]ngage in conduct involving
dishonesty, fraud, deceit, or misrepresentation" as well as to "[e]ngage in
conduct that is prejudicial to the administration ofjustice, "RPC 8.4fc) & fd).
Fraud is a suppression of the truth. It is unclear as to why Mr. Blanche
ultimately returned the amount of money he did (it does not correspond to
either the total settlement or Ms. Armstead's portion) but it is clear that his
tendering of these funds to the bankruptcy court as he did is at the very least a
misrepresentation of the truth in that these were not in fact Ms. Armstead's
funds.
As Mr. Blanche testified to later, this was all his doing. As such, with
respect to the allegation in Count V that Mr. Blanche failed to supervise a
non-lawyer in his office, the committee does not feel that under this count
ODC carried its burden. The committee
concludes that it was not a non-lawyer that violated the rules with respect to
the Armstead matter; but rather respondent himself and as such Rule 5.3 is
inapplicable to these facts..
Having found that misconduct occurred, the Committee turned next to the issue of
sanction. The Committee examined various Standards from the ABA Standards for Imposing
20
Lawyer Discipline and noted that for some misconduct, if viewed only in isolation, the
baseline sanction was less than a period of actual suspension. The Committee stated,
however, that because other misconduct standing alone warrants "actual suspension, the
appropriate baseline sanction given the totality of the rules violated is actual suspension."
The Committee explained how it arrived at a baseline of actual suspension:
For example, ODC alleges, and the committee agrees, that the mishandling of the
Armstead funds in violation of Rule 1.15 would warrant a baseline sanction of
suspension. The applicable standard for that violation would be ABA Standard 4.12.
6
Likewise, ABA Standard 4.42 would apply to the pattem of neglect clearly evident in
Count I. Under ABA Standard 4.42 suspension is generally appropriate when a
lawyer engages in a pattem of neglect which causes harm to a client. This was clearly
the case
6 ABA Standard 4.11 suggests that disbarment is appropriate in instances where there
is conversion of funds and the client is harmed. It would appear that Ms. Armstead
was not harmed in any way and the committee assumes that this is why ODC has not
sought disbarment.
here as well. With respect to Count II, respondent's actions would warrant a baseline
sanction of suspension under ABA Standard 6.22. Clearly, given the multiple rule
violations which warrant at the very least a baseline sanction of actual suspension, the
committee can consider and recommend nothing less. The question then becomes
given the multiple violations and the pattem of neglect permeating these charges,
what should the term ofthe suspension be.
The Committee reviewed the jurisprudence cited by ODC in support for a baseline
duration of three years, and noted that Mr. Blanche disagreed with that length but did not
support his position with any legal authority.
The Committee next announced several aggravating factors it had found: pnor
disciplinary offenses; a pattern of misconduct; multiple offenses; substantial experience in
the practice of law; and lack of cooperation with the disciplinary system.
21
The Committee announced the following mitigating factors: personal or emotional
problems, imposition of other penalties or sanctions; absence of a dishonest or selfish motive;
sincere remorse; and timely good faith effort to make restitution in the Armstead matter.
The Committee expressly rejected Mr. Blanche's suggestion in his testimony that his
misconduct should be excused for, as the Committee characterized: "depression and pre-
existing substance abuse ...." The Committee noted that there was no medical evidence to
support these suggestions.
As a final assessment of Mr. Blanche's culpability, the Committee stated: "There is,
however, evidence to a finding that petitioner was as a matter of fact having difficulty
addressing the problems with his wife but also that he failed to do so for an extended period
of time. That being said, the committee feels that, notwithstanding the presence of both
aggravating and mitigating factors, that the sanction of three years actual suspension is
nonetheless appropriate under the circumstances."
THE FORMAL CHARGES
(Case Number 05-DB-085)
As noted earlier, the Board has already reviewed the record of this case. After
rendering a recommendation for discipline, the Supreme Court remanded the case back to the
Board for consideration of the misconduct in 05-DB-085 along with the record of any
additional charges brought. The additional charges and Committee report (in 08-DB-065)
have been reproduced above.
To comply with the Court's remand, the formal charges in 05-DB-085 must now
again be considered, in order to be placed in context with the other charges. The charges in
05-DB-085 read, in pertinent part, as follows:
COUNT I
In the latter part of 2003, Brandy Babin, Complainant, received notice
that her home was being seized and would be subject to a sheriffs sale on or
about January 14,2004. In November of 2003, Complainant met Respondent
to assist her in stopping the sheriffs sale of her home. After consultation with
Complainant, Respondent recommended filing Chapter 13 bankruptcy to save
her home. Complainant did not have adequate payroll documentation and was
22
told to return with the needed documentation. Complainant returned on
December 29, 2003 with a deadline fast approaching. Respondent did not
meet with Complainant but his staff gave Complainant paperwork for her
husband to review and sign. When Complainant returned with her paperwork,
she did not meet with Respondent. Despite the exigent circumstances and the
looming sheriffs sale, Respondent did not meet with Complainant and failed
to file the Chapter 13 bankruptcy. Respondent admits in his response to this
office that he did not review Complainant's paperwork until after the sheriffs
sale on January 14, 2004. Complainant's home was sold by sheriffs sale on
January 14, 2004.
Respondent neglected Complainant's matter and failed to act with
reasonable diligence in representing his client's interest. Additionally,
Respondent failed to keep Complainant reasonably informed of the status of
her matter.
THE HEARING COMMITTEE REPORT
(Case Number 05-DB-085)
The hearing committee issued its report on December 8, 2006, finding that the
Respondent had violated Rules of Professional Conduct 1.3 and 104. The committee also
recommended that Mr. Blanche receive a three month suspension, all deferred, followed by a
six month period of supervised probation with the following conditions: (I) during the
probation period, Mr. Blanche successfully complete the LSBA's Ethics School Program;
and (2) during the probation period, Mr. Blanche submit an office reorganization plan.
In reaching its sanction, the committee issued the following findings of fact:
"This matter involves Mr. Blanche's representation of his former client,
Brandy Babin ("Complainant") and her husband Joseph Babin in a Chapter
13 Bankruptcy proceeding. The Babins met with Respondent on or about
November 29, 2003 and explained to him that they had received notice that
their home had been seized on November 25, 2003 and would be subject to
sheriffs sale on January 14, 2004 pursuant to a petition for executory process
filed by Deustche National Bank. Respondent suggested a Chapter 13
Bankruptcy to reorganize the Babins' debt and to stop the sheriffs sale.
Assuring the Babins there was sufficient time to stop the sale, Respondent
quoted his legal fee and filing costs and informed the Babins that he would not
proceed until receipt of the filing fees. The Babins agreed to Respondent's
terms and returned to his office on or about December 29, 2003 for a
scheduled appointment with his paralegal, at which time, Complainant paid
23
the bankruptcy filing fee and obtained a receipt for same. At this time,
Complainant also completed the schedule paperwork and brought the
paperwork home for Joseph Babin's signature.
On December 30, 2003, Brandy Babin returned all paperwork to
Respondent's office. The paperwork was received by one of Respondent's
employees, and Ms. Babin had no further communication with Respondent
until after the sale of her home. On January 14, 2004, the Babins' home was
sold pursuant to the writ of seizure and sale issued by the 21st Judicial District
Court. Brandy Babin learned of the sale of her home on January 17, 2004
when a Real Estate agent visited the home for an inspection. Complainant had
not been informed by Respondent or anyone from his office that the
bankruptcy petition had not been filed and that their home had been sold. On
that same day, Respondent met Complainant at her property and represented
to her that he could recall the sheriffs sale. After receipt of notice in March
2004 from Deutsche National Bank to vacate the property, Brandy Babin
moved."
ANALYSIS OF THE RECORD BEFORE THE BOARD
(Consolidated Cases, Numbers 08-DB-065 and 05-DB-085)
I. The Standard of Review
The powers and duties of the Disciplinary Board are defined in Section 2 of the
Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement.
Subsection (G)(2)(a) states that the Board is "to perfonn appellate review functions,
consisting of review of the findings of fact, conclusions of law, and recommendations of
hearing committees with respect to fonnal charges ... and prepare and forward to the court
its own findings, if any, and recommendations." Inasmuch as the Board is serving in an
appellate capacity, the standard of review applied to findings of fact is that of "manifest
error." Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d
840 (La. 1989). The Board conducts de novo review of the hearing committee's application
ofthe Rules of Professional Conduct. In re Hill, 90-DB-004.
24
Here, neither ODC nor Mr. Blanche challenges the findings of the Hearing
Committee in 08-DB-065 or in 05-DB-085.
8
An independent review shows that the factual
findings of the hearing committee in these two consolidated matters are supported by
documentary evidence and live testimony. Therefore, the Board finds that the factual
allegations of the fonnal charges, as pleaded, have proven by clear and convincing evidence.
Each hearing committee identified the rules which had been violated on the given
facts. Violations of the rules identified by the Committee in the second case, 08-DB-065 are:
Formal Charges Hearing Committee
Found
Count I
Rule l.l(a)(competence) Proven
Rule 1.3(diligence) Proven
Rule 1.15(safekeeping Not proven
property)
Rule 5.3(supervision of Proven
nonlawyer assistants)
Rule 8.4(c)(fraud, deceit, or Not proven
misrepresentation)
Rule 8.4(d)(conduct Proven
prejudicial to administration
of iustice)
Count II
Rule 4.2(a)(communication Proven (but not warranting
with person represented by discipline)
counsel)
Rule 5.3(supervision of Not Proven
nonlawyer assistants)
Rule 5.5(unauthorized Proven
practice oflaw)
Rule 8.4(d)(conduct Proven
prejudicial to administration
8 In the first case (05-DB-085), when lodged for the first time for the Board's review, ODC had objected to the
Committee's recommended sanction as too lenient. ODC had filed an objection to the hearing committee's
report on January 26, 2007, arguing that the committee's sanction (three month suspension, all deferred,
followed by a six month period of supervised probation) was too lenient. ODC suggested that the appropriate
sanction would be a six month suspension, with all but three months deferred, and an eighteen month period of
probation. ODC has not, however, taken issue with the factual findings in the first case.
25
ofjustice)
Count III
Rule 1.3(diligence) Not proven
Rule 5.3(supervision of Not proven
nonlawyer assistants)
Rule 8A(c)(fraud, deceit, or Not proven
misrepresentation)
Rule 8A(d)(conduct Not proven
prejudicial to administration
ofjustice)
Count IV
3A(a)(obstructing access to Proven (admitted)
evidence)
Rule 3.4(c)(disobeying Proven (admitted)
rules of a tribunal)
Rule 8.1(b) and (c)(failure Proven (admitted)
to cooperate witb ODC)
Rule 8A(d)(conduct Proven (admitted)
prejudicial to administration
ofjustice)
Count V
Rule l.I(a)(competence) Notoroven
Rule 1.3(diligence) Not proven
Rule l.I 5(safekeeping Proven (admitted)
property)
Rule 3A(c)(disobeying Proven (admitted)
rules of a tribunal)
Rule 5.3(supervision of Not proven
nonlawyer assistants)
Rule 8A(c)(fraud, deceit, or Proven
misrepresentation)
Rule 8A(d)(conduct Proven
prejudicial to administration
of iustice)
Neither ODC nor Mr. Blanche challenges the findings of violations of the
Rules of Professional Conduct as found by the Committee.
9
These Rules are reproduced in
9 ODC qualifies its acceptance oflhe Hearing Committee's conclusions oflaw by stating in ODC's Initial Brief
to the Board: "While ODC may have some differences concerning the conclusions of law recommended by the
Hearing Committee, those differences to not appear to alter the ultimate outcome of the case, or raise any novel
legal issues. ODC's position on the legal conclusions is contained in its prehearing memorandum." (Initial
Brief, p. 2). ODC does not qualify its acceptance of the Hearing Committee's findings offact, however (id.),
26
full as Appendix "B" to this Recommendation. A review of the record supports a finding of
transgressions of these rules which the Board therefore finds as follows:
Rule 1.1 requires that a lawyer provide competent represeutation.
Competency consists of the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation. Similarly, Rule 1.3
requires that a lawyer exercise reasonable diligence in representing a client.
The record reflects that Mr. Blanche's bankruptcy practice was so deficient in
competence and diligence as to result in court-imposed financial sanctions
and/or fee disgorgements some thirty-seven times. After the bankruptcy court
"tried [these] different ways of encouraging [Mr. Blanche] ... so that [he]
could return to turning out work product and fulfilling the objectives that [he]
and [his] clients set out,,,IO Mr. Blanche failed to demonstrate basic
competence in his cases.
Rule 1.15 requires a lawyer to maintain funds received on behalf of a client or
a third person separate from the lawyer's funds in a trust account. Mr.
Blanche, however, deposited settlement funds received in the Armstead matter
directly into his operating account.
As a matter of fundamental fairness within the justice system, Rule 3.4(a)
requires that a lawyer not unlawfully obstruct another party's access to
evidence. Here, Mr. Blanche received a subpoena to provide evidence
regarding three disciplinary complaints. Mr. Blanche admittedly failed to
comply, in violation of Rule 3.4(a).
and given that the fmdings (rejection of rule violations are closely tied to the findings of fact, ODC has
effectively submitted no challenge to the Committee's conclusions regarding rule violations.
10 ODC Exh. 3 (hearing on Rule to Show Cause) bates 254.
27
Another fundamental principle of the justice system is that lawyers shall not
knowingly disobey an obligation imposed by a tribunal. See Rule 3.4(c). The
subpoena mentioned in the preceding paragraph was issued pursuant to the
authority of the Louisiana Supreme Court. Mr. Blanche admittedly failed to
comply with the subpoena, in violation of Rule 3.4(c).
Lawyers also have an obligation to cooperate with the ODC when it
investigates allegations of misconduct. See Rule 8.1(b) and (c). Mr. Blanche
admittedly failed to cooperate with the investigation, which in the first
instance prompted ODC to seek a subpoena for his testimony, but in the
second instance, Mr. Blanche failed to comply with the subpoena, all in
violation of Rule 8.l(b) and (c).
A lawyer may not communicate with someone about a matter for which the
person is represented by another lawyer, pursuant to Rule 4.2. Mr. Blanche
knew that Mr. Cruse was represented by another lawyer (Mr. Cruse was
represented by Mr. Blanche until Mr. Blanche was suspended from practicing
before the bankruptcy court). Even so, Mr. Blanche purported to advise Mr.
Cruse regarding the bankruptcy, without the knowledge or consent of Mr.
Cruse's new attorney.
Rule 5.3 requires that a lawyer ensure that a non-lawyer assistant acts in a way
to fulfill the professional obligations of the lawyer. Mr. Blanche's testimony
at his disciplinary hearing and at his colloquy with the bankruptcy court
indicate that Mr. Blanche understood that his wife, who assisted him greatly in
his practice, began experiencing difficulties that impacted her work. Mr.
28
Blanche connected the sharp decline in the quality of his practice with his
wife's difficulties. Though he recognized that his wife's difficulties spanned a
significant period oftime, Mr. Blanche failed to ensure that basic professional
obligations were met, if not by his wife in the work that he supervised, then by
himself.
Pursuant to Rule 5.5, a lawyer may not practice law in a jurisdiction where the
lawyer is unauthorized to do so. Mr. Blanche was suspended from practicing
in the u.s. District Court for the Middle District of Louisiana. While
suspended, Mr. Blanche advised Mr. Cruse regarding his bankruptcy case
which was pending before that court. Mr. Blanche therefore engaged in the
unauthorized practice oflaw in violation of Rule 5.5.
Rule 8A(c) prohibits a lawyer from engaging in acts of fraud, deceit, or
misrepresentation. The Committee noted that once Mr. Blanche was
discovered as having negotiated a settlement of Ms. Armstead's personal
injury case without the trustee's approval, that Mr. Blanche gave the trustee
his own funds but did not recover (or attempt to recover) the funds from Ms.
Armstead. The Committee found that it was fraud and misrepresentation to
suggest that the funds were Ms. Armstead's. While restitution is favored, the
significance ofMr. Blanche's earlier concealment of the source of the funds is
that Ms. Armstead was a debtor in a bankruptcy proceeding and she was not
entitled to the windfall of those funds. Also, Mr. Blanche engaged in an
earlier fraud. By ignoring the trustee's requests to properly enroll as counsel
for the bankruptcy trustee and then settling Ms. Armstead's claim without the
29
trustee's knowledge and approval while diverting the settlement money to Ms.
Armstead, nnder controlling bankruptcy law, Mr. Blanche attempted a fraud
upon the bankruptcy court and upon Ms. Armstead's creditors. Both the
bankruptcy court and the creditors are entitled to an accurate picture of the
assets of a debtor such as Ms. Armstead. So important is the principle of
accurate disclosure of assets that courts have nullified debtors' claims for
failing to honor it. See In re Superior Crewboats, Inc., 374 F.3d 330, 334-
335 (5th at Cir. 2004) (when bankruptcy is pending, knowing failure to notify
bankruptcy court of potential personal injury claims is gronnds for nullifying
the debtor's claims because "intentional self-contradiction is being used as a
means of obtaining unfair advantage in a forum provided for suitors seeking
justice.,,);ll see also In re Coastal Plains, 179 F.3d 197, 208 (5th Cir.
1999)("the integrity of the bankruptcy system depends on full and honest
disclosure by debtors of all of their assets."). 12 Mr. Blanche's concealment of
Ms. Armstead's personal injury claims from the bankruptcy court and
creditors therefore violated Rule 8A(c).
Rule 8.4(d) prohibits a lawyer from engaging III conduct prejudicial to
administration of justice. Mr. Blanche's pervasive failures to adhere to basic
bankruptcy procedures disrupted the U.S. District Court for the Middle
District of Louisiana, which responded by ordering that Mr. Blanche "shall be
suspended from practicing in and appearing before the United States
Bankruptcy Court for the Middle District of Louisiana for a period of 18
II (quoting Scarano v. Central R.R. Co., 203 F.2d 510, 513 (3d Cir.1953.
12 (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 104 (S.D.N.Y.1996.
30
months,,13 based upon "the recurrence of problems, but, more importantly,
[Mr. Blanche's] failure or inability to correct the problems, notwithstanding
[the court's] attempt to use a variety of methods to persuade [Mr. Blanche] to
alter the way [he] practices so that [he] comply with the bankruptcy code, the
bankruptcy rules, the local rules " ..,,14 Based on continued problems of this
nature, the bankruptcy court later permanently barred Mr. Blanche from
practicing before that court. Mr. Blanche also actively concealed his handling
and settlement of Ms. Armstead's personal injury claim from the bankruptcy
court, and Mr. Blanche avoided his obligations to cooperate with an ODC
investigation and a subpoena issued pursuant to the authority of the Louisiana
Supreme Court. Mr. Blanche therefore violated Rule 8.4(d) on these
occaSIOns.
In the earlier case which the Board has already reviewed (OS-DB-08S), the Board
found the following Rule violations:
the Board finds that the committee's findings of fact are not manifestly
erroneous. Further, the committee correctly found that the Respondent had
violated Rules of Professional Conduct 1.3 and 1.4. Despite initially meeting
with the Babins about the Chapter 13 petition, he never followed up with his
staff concerning the filing of the petition. Consequently, the petition was not
filed prior to the sheriffs sale. Such conduct shows that the Respondent
failed to act with reasonable diligence and promptness in representing the
Babins in violation of Rule 1.3. By failing to adequately communicate with
the Babins prior to and after the sheriffs sale of their home, the Respondent
violated Rule 1.4.
II. THE APPROPRIATE SANCTION
A. Application of Rule XIX, 10(C) Factors
13 ODC Exh. 4 (court-ordered letter from Mr. Blanche to ODC reporting his own misconduct, with attached
Order), bates 277.
14 ODC Exb. 3 (hearing on Rule to Show Cause) bates 271.
31
Louisiana Supreme Court Rule XIX, IO(C) states that in imposing a sanction after a
finding of lawyer misconduct, the Court or Board shall consider the following factors:
1. whether the lawyer has violated a duty owed to a client, to the public,
to the legal system, or to the profession;
2. whether the lawyer acted intentionally, knowingly, or negligently;
3. the amount of actual or potential injury caused by the lawyer's
miscollduct; and
4. the existence of any aggravating or mitigating factors.
Mr. Blanche has violated duties owed to his clients, the public, the legal system, and
to the profession. In the many acts covered by the formal charges, Mr. Blanche's conduct
was both knowing and intentional. For example, much of Count I deals with the decline in
Mr. Blanche's bankruptcy practice, and he admittedly was aware of the decline and attributed
it to his wife's inability to help him with his practice as she once had. Therefore, even
though such decline in the quality of a lawyer's practice is often the result of a lawyer's
negligence, Mr. Blanche's admissions underscore that his misconduct was at least knowing.
In the case of the Armstead matter, however, Mr. Blanche's misconduct was
intentional. The record reflects that the trustee informed Mr. Blanche of the requirement for
him to obtain approval to seek recovery for Ms. Armstead's personal injury claim. Mr.
Blanche not only failed to complete the packet of papers the trustee had sent him, but Mr.
Blanche actually settled the case without the trustee's permission. IS
Additionally, Mr. Blanche communicated with a former client represented by new
counsel, and Mr. Blanche advised the client on a bankruptcy matter. Mr. Blanche could no
longer represent or advise the former client because Mr. Blanche was suspended from
15 Mr. Blanche had claimed that his son Lewis Blanche, an attorney now on disability inactive status (In re
Lewis Blanche, 05-B-0116 (La. 1/26/05) 892 So.2d 580), had settled the Armstead case without Mr. Blanche's
knowledge. Transcript, p. 260, 310 (Testimony of Fred Blanche). The Committee rejected that claim as
incredible; the Board does the same. The lack of credibility is demonstrated by Mr. Blanche's admission that he
helped cash a settlement check. Transcript, p. 265 (Testimony of Fred Blanche).
32
practicing before the bankruptcy court. He was also prohibited from communicating with the
client about the matter because the client was represented by new counsel, whom Mr.
Blanche had not consulted in advance. By their very nature, these are intentional acts of
misconduct.
At least two client victims of Mr. Blanche's misconduct (the Babins in case 05-0B-
085) have suffered financial losses for paying for services never rendered. As reflected in the
record relating to Count I of 08-0B-065, numerous other clients were at least delayed in the
confirmation of their bankruptcy cases due to Mr. Blanche's inadequate bankruptcy
representation.
The record reflects several aggravating factors surrounding Mr. Blanche's
misconduct. In case 05-0B-085, the Board has already identified aggravating factors as:
"vulnerability of victims and substantial experience in the practice oflaw." Mr. Blanche was
admitted to practice in the year 1971. The record supports the Committee's findings of
aggravating factors in 08-0B-065, namely: prior offenses; pattern of misconduct; multiple
offenses; substantial experience in the practice of law; and lack of cooperation with the
disciplinary process. The Committee in 08-0B-065 did not mention vulnerable victims in its
report. But, just as the Board found the two bankruptcy clients in 05-0B-085 to be
vulnerable, the scores of bankruptcy clients involved in the precipitous decline in Mr.
Blanche's practice as described in 08-0B-065 are by nature, vulnerable. The Board therefore
finds that Mr. Blanche's misconduct in 08-0B-065 was marked by the aggravating
circumstance of being committed against vulnerable victims.
The mitigating factors the Board already identified in case 05-0B-085 were: the
absence of a prior disciplinary record; and remorse. In case 08-0B-065, the record supports
33
the Committee's findings of these mitigating factors: personal or emotional problems;
imposition of other penalties or sanctions; absence of a dishonest or selfish motive; and
timely good faith effort to make restitution (in the Armstead matter). The Committee also
found a mitigating factor of remorse, but that finding is inconsistent with the Committee's
finding that Mr. Blanche was not telling the truth in his swom explanation of the Armstead
matter;16 the Board therefore declines to find remorse in matter 08-0B-065.
B. The ABA Standards and Case Law
The Board is now expressly tasked by the Supreme Court with looking at the sanction
issue afresh, and also tasked with considering the totality of the misconduct in the two cases
which have previously only been considered independently. (For reference, the Board's
previous recommendation regarding the misconduct charged in 05-0B-085 is attached as
Appendix C).
The Committee in 08-0B-065 correctly identified that Standards 4.12 and 4.42 of the
ABA Standards for Imposing Lawyer Sanctions apply to neglect, which comprised much of
Mr. Blanche's misconduct. Under Standards 4.12 and 4.42, which are predicated upon
neglect with injury or potential injury to a client, the baseline sanction is a suspension:
4.12 Suspension is generally appropriate when a lawyer knows or should
know that he is dealing improperly with client property and causes injury or
potential injury to a client.
4.42 Suspension is generally appropriate when:
a. a lawyer knowingly fails to perform services for a client and causes injury
or potential injury to a client, or
b. a lawyer engages in a pattem of neglect causes injury or potential injury to
a client.
16 See Hearing Committee Rept., p. 22.
34
However, Mr. Blanche's improper representation and settlement of Ms. Armstead's personal
injury claim also appears to meet the thresholds of Standard 6.21:
6.21 Disbarment is generally appropriate when a lawyer knowingly violates a
court order or rule with the intent to obtain a benefit for the lawyer or another,
and causes serious injury or potentially serious injury to a party, or causes
serious or potentially serious interference with a legal proceeding.
On the facts of Mr. Blanche's case, the thresholds of 6.21. appear to be met as
follows. After the trustee reminded Mr. Blanche of the need to seek the trustee's written
approval to press forward with Ms. Armstead's personal injury claim,17 Mr. Blanche
disregarded rules of the bankruptcy court well known to him, which required him to obtain
the trustee's approval to seek recovery for a debtor's personal injury claim.
I8
Both Mr.
Blanche and Ms. Armstead benefitted from Mr. Blanche settling the case outside of the
bankruptcy case, because they both received thousands of dollars. Though Mr. Blanche
made restitution, his earlier actions had the potential to cause serious i ~ u r y to the settling
party by at least raising the question whether the settlement was valid. His actions also had
the potential to seriously interfere with the bankruptcy proceeding as the trustee and creditors
predictably would have tried to recover the money which should have been considered as
part of Ms. Armstead's bankruptcy case. Last but certainly not least, assuming Mr. Blanche
obtained Ms. Armstead's approval to settle the personal injury case, that approval could have
caused her bankruptcy to be dismissed for concealing assets of the bankruptcy estate. 19
17 Transcript of Hearing, p. 203-208 (Testimony of Annette Clayton Crawford).
18 See, e.g., Local Rules of Bankruptcy Court for Middle District of Louisiana, Rule 2003-2 (Cooperation with
Trustee)(" During the administration of the case, the trustee may direct the debtor, debtor's counsel, or both to
turn over to the trustee documents or other information, or to amend documents in the case record."); see also
id., Rule 2014-I(Employment ofProfessionals)("(a) General Services for Trustee or Chapter II Debtor-in-
Possession. A trustee or a chapter II debtor-in-possession may apply ex parte to employ a professional to
p,erform general services on behalf of the estate.").
9 See II U.S.C. 727:
35
Under the ABA Standards, therefore, either suspension or disbannent is supportable.
Louisiana jurisprudence also indicates that the appropriate sanction in this type of
matter is either a suspension or disbannent. For example, ODC cited and the Committee
relied upon In re Brown, 2004-119 (La. 1/14/2005), 892 So.2d 1, in which the respondent
neglected several matters (including a bankruptcy matter), and failed to cooperate with ODC
in its investigation. The Court imposed a three year suspension, noting that "in cases that
involve several clients, we have generally imposed lengthy suspensions from the practice of
law, with no portion of the suspension deferred; in some instances, we have imposed
disbarment." The Court explained that in light of the multiple offenses, "[t)he actual
suspension of one year and one day that has been recommended by the board is far too
lenient for respondent's misconduct, even considering the sole mitigating factor recognized
by the board."
Here, before accounting for aggravating and mitigating circumstances, the rationale in
Brown counsels for at least a three year suspension. Mr. Blanche knowingly disregarded his
obligations in numerous bankruptcy filings. Mr. Blanche also committed intentional
misconduct when he engaged in the unauthorized practice of law, when he spoke to a
represented party without counsel's knowledge, and when he settled the Armstead matter
without proper authority. The Court's observation in Brown that some cases of neglect of
matters client may warrant disbarment arguably might apply here, where Mr. Blanche also
committed additional and unquestionably intentional, serious misconduct.
(a) The court shall grant the dehtor a discharge, unless-
(2) the dehtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate
charged with custody of property under this title, has transferred, removed, destroyed,
mutilated, or concealed, or has perruitted to be transferred, removed, destroyed, mutilated, or
concealed-
(B) property of the estate, after the date of the filing of the petition;
36
In addition to citing Brown, ODC likens this case to In re Wharton, 03-B-1816 (La.
10/17/2003) 872 So.2d 459. The respondent in Wharton "failed to communicate with her
clients, neglected the legal matters she was retained to handle, failed to refund unearned legal
fees, and failed to cooperate with the ODC in its investigation." The Court again noted that
in similar cases, the full array of sanctions "ranging from disbarment to fully deferred
suspensions" had been imposed. Suggesting that the lack of a prior disciplinary record was
negated by a pattern of misconduct and indifference to making restitution, the Court imposed
a three year suspension.
As to aggravating and mitigating factors surrounding Mr. Blanche's numerous acts of
misconduct, under a balancing approach, the aggravating factors outweigh mitigating factors.
The number of vulnerable victims described in Count I of 08-DB-065 (clients in sixty-five
different bankruptcy cases) and Mr. Blanche's blatant failure to testify when subpoenaed, are
aggravating circumstances that loom especially large.
Notably, Mr. Blanche acknowledges having a substance abuse problem, including the
use of illegal drugs. However, he has not demonstrated a "meaningful and sustained period
of successful rehabilitation" as required by ABA Standard 9.32(i)20 for his substance abuse to
be considered a mitigating factor. In fact, Mr. Blanche appears to have rejected ODC's
suggestion that Mr. Blanche participate in a monitoring program.
21
20 ABA Standard 9.32(i) indicates the mitigating factor of mental disability or chemical dependency may be
found when:
(I) there is medieal evidenee that the respondent is affeeted by a ehemieal dependeney or mental
disability;
(2) the ehemical dependency or mental disability caused the misconduct;
(3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a
meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the miseonduet and recurrenee ofthat miseonduet is unlikely.
21 See ODC Exh. 21 (Letter from Mr. Blanehe to ODC, exeerpted):
37
Given that the aggravating factors well outweigh mitigating factors, under the
rationale in Brown and Wharton, there is no justification to deviate downward from the
baseline of a three year suspension.
Because Mr. Blanche was placed on interim suspension for much of the conduct at
issue in this case, the Board recommends that the suspension be retroactive to the interim
suspension which began on February 13,2008.
22
The Board reiterates that portion of its previous Recommendation in 05-DB-085, that
Mr. Blanche should make restitution of the fees he charged Mr. and Mrs. Babin.
As a final matter relating to sanction, it should be noted that ODC urges that the
Board recommend Mr. Blanche be evaluated by the Lawyer's Assistance Program (LAP) and
encouraged to execute a LAP contract. As noted earlier, Mr. Blanche testified that he has
had substance abuse problems.
23
In light of this testimony, the Board agrees with ODC's
position.
CONCLUSION
The records of these two consolidated cases indicate that Mr. Blanche knowingly
disregarded his obligations in numerous bankruptcy filings. Mr. Blanche also committed
intentional misconduct when he engaged in the unauthorized practice of law, when he spoke
to a representedparty without counsel's knowledge, and when he settled the Armstead matter
without proper authority.
When I left your office after our last visit, I had every intention of submitting to a urinalysis;
however, when I called The First Step for directions, I was told to bring $50 to pay for the
testing. I did not have $50 at the time so I did not go. I have since reconsidered and am not
going to be tested voluntarily.
(Emphasis added).
22 See ODC Exh. 2, bates 245 (Order of Feb. 13,2008).
23 However, he has previously refused monitoring and the Committee properly refused to give any mitigating
weight to Mr. Blanche's substance abuse problems because he has not shown that he has been able to maintain a
meaningful and sustained recovery.
38
The applicable ABA Standards and analogous cases support a sanction of a three year
suspension from the practice oflaw. The Board recommends that the suspension commence
retroactively to Mr. Blanche's interim suspension. The Board reiterates that portion of its
previous recommendation in 05-DB-085 that Mr. Blanche make restitution of the fees he
charged Mr. and Mrs. Babin.
Because Mr. Blanche has admitted to a substance abuse problem in the context of this
disciplinary case, but he has already refused monitoring for further substance abuse, the
Board recommends that Mr. Blanche be evaluated by the Lawyer's Assistance Program
(LAP) and encouraged to execute a LAP contract.
Mr. Blanche should also be assessed with all costs and expenses of these disciplinary
proceedings.
LOUISIANA ATTORNEY DISCIPLINARY BOARD
William D. Aaron, Jr.
Charles C. Beard, Jr.
John T. Cox, Jr.
Kim Leija
Edwin G. Preis, Jr.
R. Steven Tew
__ ...::.... __ -- _
Dow M. Edwards
FOR THE ADJUDICATIVE COMMITTEE
Stephen F. Chiccarelli - Recused.
George L. Crain - Dissents with reason.
39
LOUISIANA ATTORNEY DISCIPLINARY BOARD
IN RE: FRED A. BLANCHE, III
NUMBER 05-DB-085 c/w 08-DB-065
DISSENT
I find that the magnitude of the offences and the lack of mitigating factors does not
warrant a reduction from disbarment.
By: b.. ~ t : 1. ~ , . , . " ; , , . , I ()..,
EORGE L. ('l;RAIN
ADJUDICATIVE COMMITTEE
40
Appendix A
PROCEDURAL HISTORY (05-DB-085)
Fonnal charges, consisting of one count, were filed by the Office of Disciplinary
Counsel ("ODC") against the Respondent, Fred A. Blanche, III, on December 8, 2005. In the
charges, ODC alleges that the Respondent violated Rules of Professional Conduct 1.3 (lack
of diligencei
4
and 1.4 (lack of communicationi
5
in connection with his representation of his
clients, Brandy and Joseph Babin, in a Chapter 13 bankruptcy proceeding. The charges were
served on the Respondent, via certified mail, on December 19,2005. The Respondent filed a
response to the fonnal charges on January 4, 2006, in which he states that he denies that he
"personally neglected the Babins' file or failed to act with reasonable diligence in
representing them." He also denied that he "failed to keep Mrs. Babin reasonably informed
about the status of the matter."
This matter was then scheduled for hearing before Hearing Committee #30 on March
20, 2006 in Baton Rouge, Louisiana. The Respondent filed a motion to stay the hearing on
January 24, 2006 and a memorandum in support thereof on February 13, 2006. ODC filed an
objection to Respondent's motion on January 30, 2006 and a memorandum in support thereof
on February 6, 2006. The hearing committee denied the Respondent's motion to stay on
February 9, 2006, finding that the Respondent had not stated sufficient grounds in his motion
to stay the proceeding.
24 The applicable version ofRnle 1.3 provides that "a lawyer shall act with reasonable diligence and promptness
in representing a client."
25 The applicable version of Rule 1.4 provides that "a lawyer shall keep a client reasonably informed about the
statns ofa matter and promptly comply with reasonable requests for infonnation;" and (b) "The lawyer shall
give the client sufficient infonnation to participate intelligently in decisions concerning the objectives of the
representation and the means by which they are to be pursued, to the extent the client is willing and able to do
so."
41
On February 23, 2006, the hearing committee chair submitted an amended order,
staying the proceeding until May 1, 2006. On March 3, 2006, the Board Administrator
received, via facsimile transmission from ODC, an amended response to the formal charges
in which the Respondent admitted that "under the facts and circumstances of this case, the
practice deficiencies that characterized my non-handling of Mrs. Babin's case were
unacceptable and the resulting charge of a disciplinary violation was completely and properly
justified." The Respondent concluded in his amended response that "1 greatly regret that 1
committed this violation. 1 long ago apologized to Brandy Babin and 1 apologize to the
Committee and to the Office of Disciplinary Counsel." Following a telephone conference
between the parties and the hearing committee chair on March 6, 2006, the Respondent,
noting that he had violated Rules 1.3 and 1.4, made a formal request that a hearing in
mitigation be held.
The Respondent then filed a proposed stipulation on May 1, 2006. ODC filed a
motion to reset the committee hearing on July 14, 2006. ODC noted in its motion that in a
communication dated June 13, 2006, the Respondent had disavowed a violation of Rule 1.3
as previously admitted. The matter was then rescheduled for hearing on October 16, 2006.
ODC filed its pre-hearing memorandum on October 5, 2006, in which it suggested that the
Respondent receive a suspension ranging in length from three months to one year and a day,
perhaps with a portion of the suspension deferred. ODC also recommended that following
any action portion of suspension or in the event that the hearing committee recommended a
deferred suspension, that the Respondent be placed on probation for eighteen months, subject
to the requirement that he successfully complete the LSBA's Ethics School Program and
42
attend additional CLE in law office management. The hearing was held as scheduled on
October 16, 2006 in Baton Rouge, Louisiana.
On December 8, 2006, the hearing committee issued its report, finding that the
Respondent had violated Rules of Professional Conduct 1.3 and 1.4 and recommending that
the Respondent receive a three month suspension, all deferred, followed by a six month
period of supervised probation with the following conditions: (I) during the probation period,
Respondent successfully complete the LSBA's Ethics School Program; and (2) during the
probation period, Respondent submit an office reorganization plan.
ODC filed an objection to the hearing committee's report on January 26, 2007, arguing that
the committee's sanction was too lenient. ODC suggests in its objection that the appropriate
sanction is a six month suspension, with all but three months deferred, and an eighteen month
period of probation with the committee's recommended conditions. On May 3, 2007, Deputy
Disciplinary Counsel G. Fred Ours, filed a "Memorandum to the Disciplinary Board," in
which he states that ODC's objection to the sanction is fully set forth in its brief filed on
January 26, 2007. After several continuances, this matter was set for oral argument before
Panel "A" of the Disciplinary Board on July 12,2007.
The Board issued a Recommendation on January 14, 2008 that Mr. Blanche be
suspended from the practice of law for three months, with all but thirty days deferred, subject
to supervised probation. The Board also recommended that Mr. Blanch reimburse Brady and
Joseph Babin for the fee they paid him to file their bankruptcy proceeding.
43
Appendix B
TEXT OF RULES OF PROFESSIONAL CONDUCT
Count I of the formal charges deals with conduct between April 1, 2003 and May 16, 2007, a
period of time covered by two versions of Rule 1.1. Therefore, both versions are reproduced,
beginning with the most recent version:
RULE 1.1. COMPETENCE
(amended 4/15/2006)
(a) A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
(b) A lawyer is required to comply with the minimum requirements of
continuing legal education as prescribed by Louisiana Supreme Court rule.
(c) A lawyer is required to comply with all of the requirements of the Supreme
Court's rules regarding annual registration, including payment of Bar dues,
payment of the disciplinary assessment, timely notification of changes of
address, and proper disclosure of trust account information or any changes
therein.
RULE 1.1. COMPETENCE
(a) A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
(b) A lawyer is required to comply with the minimum requirements of
continuing legal education as prescribed by Louisiana Supreme Court rule.
RULE 1.3. DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a
client.
RULE 1.15. SAFEKEEPING PROPERTY
(amended 3/1/2004)
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's own
44
property. Funds shall be kept in a separate account maintained in a bank or
similar institution in the state where the lawyer's office is situated, or
elsewhere with the consent of the client or third person. Other property shall
be identified as such and appropriately safeguarded. Complete records of such
account funds and other property shall be kept by the lawyer and shall be
preserved for a period of five years after termination of the representation.
***
(d) Upon receiving funds or other property in which a client or third person
has an interest, a lawyer shall promptly notify the client or third person. For
purposes of this rule, the third person's interest shall be one of which the
lawyer has actual knowledge, and shall be limited to a statutory lien or
privilege, a final judgment addressing disposition of those funds or property,
or a written agreement by the client or the lawyer on behalf of the client
guaranteeing payment out of those funds or property. Except as stated in this
rule or otherwise permitted by law or by agreement with the client, a lawyer
shall promptly deliver to the client or third person any funds or other property
that the client or third person is entitled to receive and, upon request by the
client or third person, shall promptly render a full accounting regarding such
property.
***
(f) A lawyer shall create and maintain an interest-bearing trust account for
clients' funds ....
RULE 3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL
(amended 3/112004)
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary
value. A lawyer shall not counselor assist another person to do any such act;
***
(c) knowingly disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation exists;
***
RULE 4.2. COMMUNICATION WITH PERSON REPRESENTED BY
COUNSEL
45
(amended 3/1/2004)
In representing a client, a lawyer shall not communicate about the subject of
the representation with:
(a) a person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order.
Count I of the formal charges deals with conduct between April 1, 2003 and May 16, 2007, a
period of time covered by two versions of Rule 5.3. Therefore, both versions are reproduced,
begiuning with the most recent version:
RULE 5.3. RESPONSIBILITIES REGARDING NONLAWYER
ASSISTANTS
(amended 311/2004)
With respect to a non-lawyer employed or retained by or associated with a
lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the non-lawyer shall
make reasonable efforts to ensure that the person's conduct is compatible with
the professional obligations ofthe lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies
the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law
firm in which the person is employed, or has direct supervisory authority over
the person, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER
ASSISTANTS
46
With respect to a non-lawyer employed or retained by or associated with a
lawyer:
(a) A partner in a law firm shall make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that the person's
conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the non-lawyer shall
make reasonable efforts to ensure that the person's conduct is compatible with
the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of such a person that would be a
violation of the rules of professional conduct if engaged in by a lawyer if:
(1) The lawyer orders or, with the knowledge of the specific conduct, ratifies
the conduct involved; or
(2) The lawyer is a partner in the law firm in which the person is employed,
or has direct supervisory authority over the person and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.
RULE 8.4. MISCONDUCT
(amended 3/1/2004)
It is professional misconduct for a lawyer to:
***
(c) Engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) Engage in conduct that is prejudicial to the administration ofjustice;
***
47
Appendix C
DISCIPLINARY BOARD'S PREVIOUS RECOMMENDATION IN 05-DB-085 (BEFORE
REMAND AND CONSOLIDATION WITH 08-DB-065)
This is a disciplinary proceeding based on the filing of formal charges against the
Respondent, Fred A. Blanche, III, by the Office of Disciplinary Counsel ("ODC"). For
reasons stated below, the Disciplinary Board recommends that the Respondent be suspended
from the practice of law for a period of three months, with all but thirty days deferred.
Following the active period of suspension, the Board further recommends that the
Respondent be placed on a six month period of supervised probation during which time a
probation monitor will monitor his law practice. The Board also recommends that, if not
already completed, the Respondent reimburse Brady and Joseph Babin for the fee they paid
to him to file their bankruptcy proceeding. Additionally, the Board recommends that the
Respondent be assessed with all costs and expenses of these proceedings.
PROCEDURAL HISTORY
Formal charges, consisting of one count, were filed by ODC against the Respondent on
December 8, 2005. In the charges, ODC alleges that the Respondent violated Rules of
Professional Conduct 1.3 (lack of diligence)[l] and 1.4 (lack of communication)[2] in
connection with his representation of his clients, Brandy and Joseph Babin, in a Chapter 13
bankruptcy proceeding. The charges were served on the Respondent, via certified mail, on
December 19, 2005. The Respondent filed a response to the formal charges on January 4,
2006, in which he denies that he "personally neglected the Babins' file or failed to act with
reasonable diligence in representing them." He also denies that he "failed to keep Mrs. Babin
48
Appendix C, Board's Previous Reconnnendation in 05-DB-085
reasonably informed about the status of the matter." See January 4,2006 Response to Formal
Charges filed by Respondent, p. 2.
This matter was then scheduled for hearing before Hearing Committee #30 on March
20, 2006 in Baton Rouge, Louisiana. The Respondent filed a motion to stay the hearing on
January 24, 2006 and a memorandum in support thereof on February 13,2006. ODC filed an
objection to Respondent's motion on January 30, 2006 and a memorandum in support thereof
on February 6, 2006. The hearing committee denied the Respondent's motion on February 9,
2006, finding that the Respondent had not stated sufficient grounds in his motion to warrant a
stay of the proceedings.
On March 3, 2006, the Board Administrator received, via facsimile transmission from
ODC, an amended response to the formal charges in which the Respondent admitted that
"under the facts and circumstances of this case, the practice deficiencies that characterized
my non-handling of Mrs. Babin's case were unacceptable and the resulting charge of a
disciplinary violation was completely and properly justified." The Respondent concluded in
his amended response that "I greatly regret that I committed this violation. 1 long ago
apologized to Brandy Babin and I apologize to the Committee and to the Office of
Disciplinary Counsel." See March 3, 2006 Amended Response of Respondent. On the same
date, the hearing committee chair issued an amended order which was dated February 23,
2006, staying the proceeding until May I, 2006. Following a telephone conference between
the parties and the hearing connnittee chair on March 6, 2006, the Respondent made a formal
request that a hearing in mitigation be held, noting that he had violated Rules 1.3 and 1.4.
49
Appendix C, Board's Previons Recommendation in 05-DB-085
The Respondent then filed a proposed stipulation on May 1,2006. On July 14,2006,
ODC filed a motion to reset the committee hearing. ODC noted in its motion that in a
communication dated June 13, 2006, the Respondent had disavowed a violation of Rule 1.3
as previously admitted. The matter was then rescheduled for hearing on October 16, 2006.
ODC filed its pre-hearing memorandum on October 5, 2006, in which it suggested that the
Respondent receive a suspension ranging in length from three months to one year and a day,
perhaps with a portion of the suspension deferred. ODC also recommended that following
any active portion of suspension or in the event that the hearing committee recommended a
deferred suspension, that the Respondent be placed on probation for eighteen months, subject
to the requirement that he successfully complete the LSBA's Ethics School Program and
attend additional CLE in law office management. The hearing was held as scheduled on
October 16,2006 in Baton Rouge, Louisiana.
On December 8, 2006, the hearing committee issued its report, finding that the
Respondent had violated Rules of Professional Conduct 1.3 and 1.4 and recommending that
the Respondent receive a three month suspension, all deferred, followed by a six month
period of supervised probation with the following conditions: (l) during the probation period,
Respondent successfully complete the LSBA's Ethics School Program; and (2) during the
probation period, Respondent submit an office reorganization plan.
ODC filed an objection to the hearing committee's report on January 26, 2007, arguing
that the committee's sanction was too lenient. ODC suggests in its objection that the
appropriate sanction is a six month suspension, with all but three months deferred, and an
eighteen month period of probation with the committee's recommended conditions. On May
50
Appendix C, Board's Previous Recommendation in 05-DB-085
3, 2007, ODC filed a "Memorandum to the Disciplinary Board," in which it reiterates its
objection to the sanction as set forth in its brief filed on January 26, 2007. After several
continuances, oral argument before Panel "A" of the Disciplinary Board was held on July 12,
2007. Deputy Disciplinary Counsel G. Fred Ours appeared on behalf of ODC. The
Respondent did not appear.
THE FORMAL CHARGES
The formal charges in this matter read, in pertinent part, as follows:
COUNT I
In the latter part of 2003, Brandy Babin, Complainant, received notice that her home
was being seized and would be subject to a sheriffs sale on or about January 14, 2004. In
November of2003, Complainant met Respondent to assist her in stopping the sheriffs sale of
her home. After consultation with Complainant, Respondent recommended filing Chapter 13
bankruptcy to save her home. Complainant did not have adequate payroll documentation and
was told to return with the needed documentation. Complainant returned on December 29,
2003 with a deadline fast approaching. Respondent did not meet with Complainant but his
staff gave Complainant paperwork for her husband to review and sign. When Complainant
returned with her paperwork, she did not meet with Respondent. Despite the exigent
circumstances and the looming sheriffs sale, Respondent did not meet with Complainant and
failed to file the Chapter 13 bankruptcy. Respondent admits in his response to this office that
he did not review Complainant's paperwork until after the sheriffs sale on January 14, 2004.
Complainant's home was sold by sheriffs sale on January 14, 2004.
51
Appendix C, Board's Previous Recommendation in 05-DB-085
Respondent neglected Complainant's matter and failed to act with reasonable diligence
in representing his client's interest. Additionally, Respondent failed to keep Complainant
reasonably informed of the status of her matter.
THE HEARING COMMITTEE'S REPORT
As noted above, the hearing committee issued its report on December 8, 2006, finding
that the Respondent had violated Rules of Professional Conduct 1.3 and 1.4. The committee
also recommended that the Respondent receive a three month suspension, all deferred,
followed by a six month period of supervised probation with the following conditions: (I)
during the probation period, Respondent successfully complete the LSBA's Ethics School
Program; and (2) during the probation period, Respondent submit an office reorganization
plan. In reaching its sanction, the committee issued the following findings offact:
"This matter involves Mr. Blanche's representation of his former
client, Brandy Babin ("Complainant") and her husband Joseph Babin
in a Chapter 13 bankruptcy proceeding. The Babins met with
Respondent on or about November 29, 2003 and explained to him that
they had received notice that their home had been seized on November
25, 2003 and would be subject to sheriffs sale on January 14, 2004
pursuant to a petition for executory process filed by Deustche National
Bank. Respondent suggested a Chapter 13 Bankruptcy to reorganize
the Babins' debt and to stop the sheriffs sale. Assuring the Babins
there was sufficient time to stop the sale, Respondent quoted his legal
fee and filing costs and informed the Babins that he would not proceed
until receipt of the filing fees. The Babins agreed to Respondent's
terms and returned to his office on or about December 29, 2003 for a
scheduled appointment with his paralegal, at which time, Complainant
paid the bankruptcy filing fee and obtained a receipt for same. At this
time, Complainant also completed the schedule paperwork and
brought the paperwork home for Joseph Babin's signature.
On December 30, 2003, Brandy Babin returned all paperwork to
Respondent's office. The paperwork was received by one of
Respondent's employees, and Ms. Babin had no further
communication with Respondent until after the sale of her home. On
52
Appendix C, Board's Previous Recommendation in 05-DB-085
January 14, 2004, the Babins' home was sold pursuant to the writ of
seizure and sale issued by the 21 st Judicial District Court. Brandy
Babin learned of the sale of her home on January 17, 2004 when a
Real Estate agent visited the home for an inspection. Complainant had
not been informed by Respondent or anyone from his office that the
bankruptcy petition had not been filed and that their home had been
sold. On that same day, Respondent met Complainant at her property
and represented to her that he could recall the sheriffs sale. After
receipt of notice in March 2004 from Deutsche National Bank to
vacate the property, Brandy Babin moved."
Based upon these factual findings, the committee then determined that the Respondent
had violated the Rules of Professional Conduct as charged. In determining the appropriate
sanction, the committee examined the Rule XIX, Section W(C) factors, finding that the
Respondent had violated a duty owed to his client and to the profession. The committee also
found that the Respondent's conduct was negligent and resulted in injury to Mrs. Babin. The
committee determined that the aggravating factors of vulnerability of victim and substantial
experience in the practice of law were presentPJ The mitigating factors of absence of a
disciplinary record and remorse were also noted by the committee.
The committee also relied upon ABA Standards for Imposing Lawyer Sanctions,
Standard 4.42 in determining its sanction. This standard indicates that a suspension is
appropriate when a lawyer knowingly fails to perform services for a client and causes injury
or potential injury to a client.
ANALYSIS
I. The Standard Of Review
The powers and duties of the Disciplinary Board are defined in Section 2 of the
Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Subsection
(G)(2)(a) states that the Board is "to perform appellate review functions, consisting of review
53
Appendix C, Board's Previous Recommendation in 05-DB-085
of the findings of fact, conclusions of law, and recommendations of hearing committees with
respect to formal charges ... and prepare and forward to the court its own findings, if any,
and recommendations." Inasmuch as the Board is serving in an appellate capacity, the
standard of review applied to findings of fact is that of "manifest error." Arceneaux v.
Domingue, 365 So.2d 1330 (La.l978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The
Board conducts a de novo review of the hearing committee's application of the Rules of
Professional Conduct. In re Hill, 90-DB-004. Here, the Board finds that the committee's
findings of fact are not manifestly erroneous. Further, the committee correctly found that the
Respondent had violated Rules of Professional Conduct 1.3 and 1.4. Despite initially meeting
with the Babins about the Chapter 13 petition, he never followed up with his staff concerning
the filing of the petition. Consequently, the petition was not filed prior to the sheriffs sale.
Such conduct shows that the Respondent failed to act with reasonable diligence and
promptness in representing the Babins in violation of Rule 1.3. By failing to adequately
communicate with the Babins prior to and after the sheriffs sale of their home, the
Respondent violated Rule 1.4.
II. The Appropriate Sanction
a. The Rule XIX, Section lO(c) Factors
Louisiana Supreme Court Rule XIX, Section 10(C) states that in imposing a sanction
after a finding ofiawyer misconduct, the Court or Board shall consider the following factors:
(I) whether the lawyer has violated a duty owed to a client, to the public, to the
legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of actual or potential injury caused by the lawyer's misconduct;
and
54
Appendix C, Board's Previous Recommendation in 05-DB-085
(4) the existence of any aggravating or mitigating factors.
In the matter at hand, the Respondent has violated the duties he owed to his
clients, Mr. and Mrs. Babin. His conduct was negligent, and the Babins sustained actual and
irreparable injury, the loss of their home. The aggravating factors present include
vulnerability of victims and substantial experience in the practice of law. Mitigating factors
include absence of a prior disciplinary record and remorse.
b. ABA Standards and Case Law
The committee correctly relied upon Standard 4.42 in determining that the baseline
sanction in this matter is a suspension. The Respondent knowingly failed to complete
services that he was hired to perform for the Babins and caused injury to befall them.
Pertinent jurisprudence indicates that the range of sanction imposed for similar matters has
spanned from a three month suspension, all deferred, along with probation, to a one year and
one day suspension. For example, in the case of In re Jones, 2000-B-2765 (La. 2/21/01); 779
So.2d 712, the respondent was hired by a client to handle her divorce and custody
proceeding. When the client inquired about the status of her case, the respondent advised her
that the divorce petition had been filed. In fact, the respondent had not filed the petition for
divorce as he represented to the client, and he did not file the petition until weeks later.
Respondent also failed to relay accurate information about the case to his client or failed to
respond to her requests for information. Id. at 713-14, n. 3. The respondent was charged by
ODC with several violations of the Rules of Professional Conduct, including Rules 1.3 and
1.4. The Court later determined that these rules had been violated. Id. at 714.
55
Appendix C, Board's Previous Recommendation in 05-DB-085
In determining the appropriate sanction in this matter, the Court noted that the client
had not suffered irreparable harm. The Court determined that the only significant aggravating
factor present was the respondent's substantial experience in the practice of law. The Court
found that this factor was offset by the respondent's lack of any disciplinary record during his
legal career. The Court also noted that although not "strictly a mitigating factor," the
respondent also showed a willingness to participate in fee arbitration with his former client.
Id. at 715. Under these circumstances, the Court imposed a ninety day suspension, all
deferred, followed by a one year period of supervised probation with conditions. Id
In In re Jackson, 2002-2764 (La. 4/9/03); 842 So.2d 359, an individual named Lee
Morris Brown retained an attorney to initiate medical malpractice proceedings. The attorney
terminated the representation in March of 1997 and advised Mr. Brown of the prescription
deadline. Within days, Mr. Brown contacted Mr. Jackson and requested his review of the file.
The records were timely forwarded to Mr. Jackson, and Mr. Brown and Mr. Jackson
communicated by telephone on several occasions. Mr. Brown and Mr. Jackson spoke on the
final day to file suit but Mr. Jackson failed to act. Mr. Jackson later filed suit after the
deadline had passed. The malpractice suit was dismissed as prescribed. Id at 360.
ODC filed one count of formal charges alleging violations of Rules 1.3 and 1.4. The
Louisiana Supreme Court found that the Rules of Professional Conduct had been violated as
charged. The Court noted that the respondent's actions had resulted in actual injury to Mr.
Brown, causing him to lose his right to assert his claims in the underlying litigation. Id at
362. The Court suspended Mr. Jackson for six months, with three months deferred.
Following the active period of his suspension, Mr. Jackson was also placed on probation for
56
Appendix C, Board's Previous Recommendation in 05-DB-085
a period of one year, upon the condition that he complete the Louisiana State Bar
Association's Ethics School Program. Id. at 363.
In In re Sumpter, 2006-0576 (La. 6/02/06); 931 So.2d 347, the respondent was retained
by a client to file a Chapter 7 bankruptcy petition. By May of 2000, Sumpter had received all
attorney's fees and filing costs. He instructed the client not to pay any bills that were to be
discharged. In January of 2001, the respondent had obtained the client's signature on the
petition, but failed to file the petition. Ten months later, the client requested a status report on
the bankruptcy, and she then learned the petition had not been filed. The client completed
additional paperwork and received the respondent's assurance that the petition would be filed.
Thereafter, the client again requested a status report and was told by the respondent that the
petition had been filed. The client later learned that the respondent never filed her bankruptcy
petition. Id. at 348.
ODC filed formal charges against the respondent, alleging numerous violations of the
Rules of Professional Conduct including violations of Rules 1.3 and 1.4. The disciplinary
case proceeded as a deemed admitted matter. After finding that violations of Rules 1.3, 1.4,
1.5, 1.16 and 8.4 were present, the Louisiana Supreme Court also found that significant
mitigating factors were present. Id. at 351. The Supreme Court suspended the respondent for
one year and one day, all deferred, conditioned upon one year of unsupervised probation with
conditions. Id.
Finally, in In re Carreras, 2000-1094 (La. 6/16/00); 765 So.2d 321, the respondent was
retained to initiate bankruptcy proceedings on behalf of a client. She was paid $420.00 by the
client. She later neglected to institute any bankruptcy proceedings, failed to communicate
57
Appendix C, Board's Previous Recommendation in 05-DB-085
with the client and failed to provide an accounting to the client. Further, Ms. Carreras failed
to return the unearned portion of the fee. Id at 322.
ODC filed formal charges against Ms. Carreras, alleging misconduct in violation of
Rules 1.3, 1.4 and 1.5. The case proceeded as a deemed admitted matter. The Court found
that the respondent had violated the rules as charged and noted that the respondent had an
"apparent disregard for her professional obligations in this state, as evidenced by her failure
to participate in these proceedings and her failure to pay her bar dues/disciplinary assessment
or fulfill her mandatory continuing legal education responsibilities." The Louisiana Supreme
Court suspended Ms. Carreras for a period of one year and one day, with conditions. Id at
323.
This matter is similar to Jones, Jackson, Sumpter and Carreras in that the Respondent
was hired to perform a particular legal service and failed to timely complete the service. Also
like the clients in Jackson, Sumpter and Carreras, the Babins have suffered substantial harm
because of the Respondent's actions. As in Jones, the aggravating factor of substantial
experience in the practice of law should be offset by Respondent's lack of a disciplinary
record during his legal career. Unlike Ms. Carreras and Mr. Sumpter, the Respondent has
participated in these proceedings and has not allowed the case to proceed as a deemed
admitted matter.
Given the above, the hearing committee's proposed sanction appears to be too lenient.
Although the Respondent's conduct in missing the filing deadline appears to be primary
based upon negligence, the record supports a finding that he failed to properly communicate
with the Babins prior to and after the sheriffs sale. Moreover, even though this case is very
58
Appendix C, Board's Previous Recommendation in 05-DB-085
similar to the Jones matter discussed above, the Board has found that the Babins suffered
irreparable harm, the loss of their home, in this matter. The sanction in this matter should
therefore be more stringent than that imposed in Jones.
Accordingly, the Board will not adopt the committee's proposed sanction and instead
recommends that the Respondent be suspended for a period of three months, with all but
thirty days deferred. Following the active period of suspension, the Board further
recommends that the Respondent be placed on a six month period of supervised probation
during which time a probation monitor will monitor his law practice. The Board also
recommends that, if not already completed, the Respondent reimburse Mr. and Mrs. Babin
for the fee they paid to him to file their bankruptcy proceeding, and that he be assessed with
all costs and expenses ofthese proceedings.
RECOMMENDATION
The Disciplinary Board adopts the hearing committee's findings of fact and findings
that Rules of Professional Conduct 1.3 and 1.4 have been violated. Further, the Board
recommends that the Respondent be suspended for a period of three months, with all but
thirty days deferred. Following the active period of suspension, the Board recommends that
the Respondent be placed on a six month period of supervised probation during which time a
probation monitor will monitor his law practice. The Board also recommends that, if not
already completed, the Respondent reimburse Mr. and Mrs. Babin for the fee they paid to
him to file their bankruptcy proceeding, and that he be assessed with all costs and expenses
of these proceedings.
59
Appendix C, Board's Previous Recommendation in 05-DB-085
[lJ The applicable version of Rule 1.3 provides that "a lawyer shall act with reasonable diligence and promptness
in representing a client.!!
[2J The applicable version of Rule 1.4 provides that "a lawyer shall keep a client reasonably informed about the
status of a matter and promptly comply with reasonable requests for information;" and (b) "the lawyer shall give
the client sufficient information to participate intelligently in decisions concerning the objectives of the
representation and the means by which they are to be pursned, to the extent the client is willing and able to do
so.n
[3J The Respondent was admitted to the practice oflaw in this State on September 9, 1971.
60