FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE # 20
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 20th day of February, 2004, are as follows:
PER CURIAM:
2003-B- 2010
IN RE: JEAN MARIE LACOBEE
(Disciplinary Proceedings)
Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record, briefs,
and oral argument, it is ordered that Jean Marie Lacobee, Louisiana
Bar Roll number 25319, be suspended from the practice of law in
Louisiana for a period of three years, with one year of this
suspension deferred. This suspension shall be retroactive to October
30, 2002, the date of respondent's interim suspension. It is further
ordered that respondent make full restitution to her clients of any
unearned legal fees. All costs and expenses in the matter are
assessed against respondent in accordance with Supreme Court Rule
XIX, §10.1, with legal interest to commence thirty days from the date
of finality of this court's judgment until paid.
02/20/04
SUPREME COURT OF LOUISIANA
NO. 03-B-2010
IN RE: JEAN MARIE LACOBEE
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM
This disciplinary matter arises from two consolidated sets of formal charges
filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Jean Marie
Lacobee, an attorney licensed to practice law in Louisiana but currently on interim
suspension. In re: Lacobee, 02-2597 (La. 10/30/02), 831 So. 2d 835.
UNDERLYING FACTS AND PROCEDURAL HISTORY
00-DB-090
The Graves Matter
On March 29, 1999, Betty J. Graves paid respondent $550 to handle two
separate legal matters. In the first matter, Ms. Graves sought to recover profits she
allegedly lost when a stock sale was not promptly executed by the transfer agent. In
the second matter, Ms. Graves sought to recover sums allegedly owed her by a
gardener whom she formerly employed. After undertaking the representation of Ms.
Graves, respondent failed to make any appreciable progress toward the completion of
her legal matters. Ms. Graves discharged respondent on April 30, 1999 and requested
a refund of the unearned portion of the legal fee she paid. Respondent did not comply
with this request until August 2000, when she refunded $87.50 to Ms. Graves.
The Williamson Matter
Beverly Williamson retained respondent to file a Chapter 7 bankruptcy
proceeding. In December 1998, Ms. Williamson paid respondent $500 to handle the
bankruptcy, plus $175 for court costs. Respondent filed the bankruptcy petition in
March 1999. It was subsequently determined that all of Ms. Williamson’s assets – the
most significant of which was a herd of dairy cattle – were not listed on the
bankruptcy schedules, necessitating the filing of amended schedules. In April 1999,
Ms. Williamson paid respondent an additional $450 for preparing and filing the
amended schedules. Respondent was discharged by Ms. Williamson in May 1999,
before the bankruptcy proceeding was concluded; however, respondent refused to
account for the legal fee she was paid or to refund any unearned portion.
In addition to the bankruptcy matter, Ms. Williamson also requested that
respondent handle an intrafamily adoption proceeding on her behalf. Ms. Williamson
paid respondent $1,000 to handle the adoption, plus $200 for court costs. Ms.
Williamson terminated this representation at the same time she terminated the
representation in the bankruptcy matter. Although respondent did not complete the
adoption before she was discharged, she refused to account for the legal fee she was
paid or to refund any unearned portion.
00-DB-131
The Dorsett Matter
In February 1998, Charles I. Dorsett, Ph.D., a mathematics professor at
Louisiana Tech University, filed an employment discrimination suit against the
university. Charles Dorsett v. Louisiana Tech University, et al., No. 98-0210 on the
docket of the United States District Court for the Western District of Louisiana. At
this time, Dr. Dorsett was not represented by counsel. Dr. Dorsett subsequently
visited several attorneys in an attempt to obtain representation on a contingency fee
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basis. In late June or early July 1998, Dr. Dorsett and his wife met with respondent,
and she agreed to accept the representation on a one-third contingency fee basis, with
a minimum fee of $5,000. Dr. Dorsett paid respondent $5,000 by check dated July 16,
1998; however, respondent did not deposit this sum into her client trust account.
Furthermore, respondent failed to obtain a written, signed contingency fee agreement
from Dr. Dorsett.
In July 1999, Dr. Dorsett paid respondent $2,500 to be applied towards the
costs and expenses of the litigation. Respondent did not deposit this sum into her
client trust account. In December 1999, Dr. Dorsett paid respondent an additional
$500 to cover costs. Thereafter, despite the fact that respondent had agreed to handle
the matter on a contingency fee basis, she made repeated demands of Dr. Dorsett for
payment of additional sums. When Dr. Dorsett refused to pay these additional sums,
respondent withdrew from the representation in May 2000. Respondent failed to
account for the legal fees she was paid or to promptly return Dr. Dorsett’s file, despite
his requests that she do so. Dr. Dorsett subsequently filed a complaint against
respondent with the ODC.
On August 22, 2000, respondent was personally served with a subpoena
compelling her appearance before the ODC on September 12, 2000 to provide sworn
testimony concerning the Dorsett matter. Respondent appeared at the appointed date
and time and requested a continuance to obtain counsel.
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Formal Charges
On July 19, 2000, the ODC filed two counts of formal charges against
respondent in 00-DB-090, alleging that her conduct in the Graves and Williamson
matters violated the following provisions of the Louisiana Rules of Professional
Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in
representing a client), 1.4 (failure to communicate with a client), 1.5 (fee
arrangements), 1.15 (safekeeping property of clients or third persons), 1.16
(termination of the representation), and 8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation).
On October 24, 2000, the ODC filed one count of formal charges against
respondent in 00-DB-131, alleging that her conduct in the Dorsett matter violated the
following provisions of the Louisiana Rules of Professional Conduct: Rules 1.5, 1.15,
1.16, 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(c), and 8.4(g)
(failure to cooperate with the ODC in its investigation).
The two sets of formal charges were consolidated by order of the hearing
committee chair on November 1, 2000. Respondent answered both sets of formal
charges and denied any misconduct in connection with her handling of the client
matters at issue. The matter then proceeded to a formal hearing on the merits.
Hearing Committee Recommendation
After reviewing the evidence presented at the hearing, the hearing committee
made the following factual findings and legal conclusions:
4
The Graves Matter
The committee found that Betty Graves retained respondent in 1999 to handle
a claim for lost profits on a stock transaction and to locate a yard man who had failed
to do work for which he had been paid in advance No hourly billing rate was
discussed; however, Ms. Graves paid respondent the sum of $550 as the combined fee
for handling both matters. In order to investigate the stock matter, respondent
contacted a more experienced attorney, who advised her that it would be fruitless to
pursue the profits lost in the transaction. Respondent performed computer research
in an attempt to locate Ms. Graves’ yard man, which was unsuccessful.
After she was discharged, respondent provided Ms. Graves with an accounting
showing her work performed in the matter. In the statement of services rendered,
respondent gave her client credit for paying $500 in legal fees when Ms. Graves had
actually deposited $550, and respondent billed total charges of $412.50. Respondent
refunded $87.50 to Ms. Graves. However, the committee felt that respondent
performed little, if any, work that benefitted Ms. Graves, and billed her excessively
for what work she did perform. For example, respondent charged one hour at $150
per hour for her telephone consultation with another lawyer, when that lawyer testified
the conversation lasted approximately three to twelve minutes.
In addition,
respondent billed one hour for her unsuccessful computer research, and billed onethird of an hour for preparing the accounting. The committee concluded that
respondent attempted to fabricate a statement of services rendered in order to justify
retention of the funds deposited by Ms. Graves. Accordingly, the committee found
respondent violated Rule 1.5 in billing and retaining an unreasonable fee which was
grossly in excess of the value of the services rendered to the client, and violated Rule
1.15 by failing to properly account to her client for funds advanced by the client.
5
The Williamson Matter
In November 1998, Beverly Williamson retained respondent to handle her
Chapter 7 bankruptcy. Respondent agreed to handle the matter for $500 plus court
costs. Respondent filed the initial bankruptcy pleadings; however, the schedules were
incomplete as they failed to disclose Ms. Williamson’s sale of 150 head of dairy cows.
The committee found no evidence that respondent either intentionally or negligently
failed to include this information in the bankruptcy schedules, as prior to the initial
bankruptcy filing, Ms. Williamson had not provided respondent any information
concerning the cows. The bankruptcy trustee subsequently initiated an investigation
to determine whether the failure to list the cows as assets of the bankruptcy estate
constituted bankruptcy fraud. The trustee determined that Ms. Williamson was not
guilty of bankruptcy fraud and allowed her to amend her schedules. Respondent
obtained the necessary information from Ms. Williamson and filed the amended
schedules on or about April 28, 1999. Respondent charged Ms. Williamson an
additional fee (in addition to the flat fee initially agreed upon) for filing the amended
schedules, which additional fees the committee found were reasonable. Therefore, the
committee found no clear and convincing evidence that respondent violated the Rules
of Professional Conduct in connection with her handling of the bankruptcy matter.
Ms. Williamson also retained respondent to handle her husband’s adoption of
her two children from a prior marriage. Ms. Williamson paid a fee of $1,000 plus
$200 in court costs for the adoption matter. Ms. Williamson discharged respondent
in May 1999, at which time respondent had not completed the adoption proceedings.
Respondent has failed to account to Ms. Williamson for the $1,000 fee and the $200
in court costs since being discharged, in violation of Rules 1.5, 1.15, and 1.16 of the
Rules of Professional Conduct.
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The Dorsett Matter
Respondent agreed to accept the representation of Dr. Dorsett based upon a
modified contingency fee arrangement which provided for a “minimum fee” of
$5,000, to be credited against a one-third contingency fee in the event of a successful
outcome. Although a contingency fee agreement was prepared, no agreement was
ever signed by the parties, in violation of Rule 1.5.
Pursuant to their verbal contingency fee agreement, Dr. Dorsett paid respondent
$5,000 by check dated July 16, 1998. Although the $5,000 was not deposited into
respondent’s client trust account, the committee found the ODC failed to show by
clear and convincing evidence that this payment represented anything other than a
“minimum fee” which could appropriately be deposited into respondent’s operating
account. However, the committee did find clear and convincing evidence that the
$2,500 check Dr. Dorsett gave respondent in July 1999 was not part of a “minimum
fee” and should have been deposited into a client trust account. The evidence is clear
that the $2,500 check was to cover litigation expenses, such as taking depositions and
for other expenses. Respondent deposited the $2,500 check into her personal account,
in violation of Rule 1.15.
Respondent withdrew from the representation of Dr. Dorsett in May 2000, but
did not provide Dr. Dorsett an accounting for the funds which were given her for
purposes of covering the costs of the litigation. The committee found such conduct
violated Rule 1.16(d). After her withdrawal from Dr. Dorsett’s case, respondent failed
to promptly provide Dr. Dorsett his file despite repeated requests to do so and despite
the fact that the federal court had given Dr. Dorsett only thirty days to obtain new
counsel. Respondent delayed the return of Dr. Dorsett’s file materials and conditioned
return of the materials upon payment of a charge for copying the file. The committee
agreed it is permissible for an attorney to require a client to pay for duplication of his
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or her file, but noted that in this case, respondent had previously received $2,500 for
expenses from Dr. Dorsett. There is no indication that any of said amount had been
applied to expenses of the litigation, and presumably these funds were available to
cover the cost of copying Dr. Dorsett’s file. Accordingly, the committee found
respondent’s delay in returning the file constitutes a violation of Rule 1.16(d).
In connection with Dr. Dorsett’s complaint, the ODC issued a subpoena which
was served on respondent on August 22, 2000 to compel her attendance at a sworn
statement scheduled for September 12, 2000. Respondent traveled to Baton Rouge
from Shreveport on that date and appeared at the Office of Disciplinary Counsel at the
appropriate time, but asked for a continuance to obtain counsel. When Disciplinary
Counsel refused the request for a continuance and advised respondent that it would
be necessary for her to give a sworn statement on that date, she refused to proceed.
Under the circumstances, the committee found respondent’s actions did not constitute
a failure to cooperate with the ODC in its investigation.1
Turning to the issue of the appropriate discipline for respondent’s misconduct,
the committee determined that the ABA’s Standards for Imposing Lawyer Sanctions
support a baseline sanction of suspension. As mitigating factors, the committee
recognized respondent’s inexperience in the practice of law (admitted 1997) and her
medical condition (ADHD). However, the committee felt the mitigating factors are
greatly outweighed by the aggravating factors present, including pattern of
misconduct, multiple offenses, bad faith obstruction of the disciplinary process,
refusal to acknowledge the wrongful nature of the conduct, and indifference to making
restitution. Under these circumstances, the committee recommended that respondent
be suspended from the practice of law for two years.
1
Indeed, the committee noted the ODC should have granted the continuance, given that no
“exigent circumstances” then existed which required the denial of a short continuance of the sworn
statement.
8
Respondent and the ODC both filed objections to the hearing committee’s
recommendation.
Disciplinary Board Recommendation
In the Graves matter, the board agreed respondent violated Rule 1.5 by charging
an unreasonable fee to Ms. Graves, and violated Rules 1.5(f) and 1.16(d) by her
failure to promptly deliver the funds actually due her client, by her failure to place
disputed funds in trust, and by her failure to provide a prompt accounting. The board
also found that respondent engaged in dishonest conduct in violation of Rule 8.4(c)
by charging her client an unreasonable fee and retaining the bulk of the funds
advanced by the client based upon a fabricated bill. However, like the committee, the
board declined to find a violation of Rules 1.3 and 1.4, noting respondent was
discharged by Ms. Graves after only one month.
As to the Williamson matter, the board found respondent violated Rules
1.5(f)(6) and 1.16(d) by failing to refund an unearned fee, failing to place disputed
funds in trust, and failing to provide an accounting. Like the committee, the board did
not find a violation of Rule 8.4(c), observing there was no clear and convincing proof
of dishonest conduct.
In the Dorsett matter, the board found respondent violated Rule 1.5 by entering
into a contingency fee agreement without obtaining a signed written contract and
violated Rule 1.15(a) by failing to place an advance deposit for costs into a trust
account, resulting in a conversion of those funds. Upon termination, her acts in failing
to promptly release the file, forcing Dr. Dorsett to pay copy costs by mailing the file
to him “cash on delivery,” and failing to return the unused funds violated Rule
1.16(d). However, the board found no clear and convincing proof that respondent
acted dishonestly in violation of Rule 8.4(c). Finally, the board adopted the reasoning
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of the committee in its determination that respondent did not fail to cooperate with the
ODC.
In determining the appropriate sanction, the board found respondent’s actions
were knowing for the most part. It found her pattern of refusal to place disputed funds
in trust, to provide proper accountings, and to refund unearned fees caused actual
damage not only to her clients, but also to the public and to the profession. The board
determined the baseline sanction for this misconduct is a suspension from the practice
of law.
The board adopted the aggravating factors cited by the hearing committee, and
agreed that the record supports the mitigating factors of inexperience in the practice
of law and personal problems (respondent’s ADHD). The board specifically noted
that much of respondent’s misconduct can be attributed to her inexperience,
incompetence (not only with respect to the legal matters she handled, but particularly
with respect to fees, billing, and the business of running a law office), and ignorance
of her ethical obligations regarding the handling of client funds and funds in dispute.
However, the board concluded that ignorance of the disciplinary rules is not a defense,
and the discipline imposed in this matter should be designed to protect the public.
In determining an appropriate sanction, the board primarily relied upon
Louisiana State Bar Ass’n v. Hinrichs, 486 So. 2d 116 (La. 1986), particularly
considering respondent’s conversion of the costs advanced by Dr. Dorsett. Applying
Hinrichs, the board noted there is no evidence that respondent was acting in bad faith
relative to her failure to maintain a proper client trust account, and the amount of
money involved was not great. Nevertheless, the board felt respondent’s conduct
exhibited a “high degree of negligence” which warrants a three-year suspension,
particularly considering the “padding” of the Graves bill and her refusal to place
disputed funds in trust, to provide proper accountings to her clients, and to return
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unearned fees. However, in light of respondent’s inexperience, the board determined
it is appropriate to defer one year of the suspension.
Accordingly, the board recommended that respondent be suspended from the
practice of law for three years, with one year deferred. The board also recommended
that respondent refund any unearned fees due to Dr. Dorsett, Ms. Graves, and Ms.
Williamson. Finally, the board recommended that respondent be assessed with all
costs and expenses of these proceedings, with legal interest to commence thirty days
from the date of finality of this court’s judgment until paid.
Respondent and the ODC both filed objections to the disciplinary board’s
recommendation. The case was then docketed for oral argument pursuant to Supreme
Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters come within the original jurisdiction of this court. La.
Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an
independent review of the record to determine whether the alleged misconduct has
been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La. 11/30/94),
646 So. 2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So. 2d 444 (La. 1992).
Based on our review of the record, we conclude the factual findings of the
hearing committee are supported by the record.
The evidence demonstrates
respondent has refused to place disputed funds in trust, to provide proper accountings,
and to refund unearned fees. She acted dishonestly in the Graves matter by fabricating
a bill and converted funds in the Dorsett matter. These actions constitute violations
of the Rules of Professional Conduct which warrant discipline. Accordingly, we now
turn to a determination of the appropriate sanction.
11
The purpose of disciplinary proceedings is not primarily to punish the lawyer,
but rather to maintain the appropriate standards of professional conduct, to preserve
the integrity of the legal profession and to deter other lawyers from engaging in
violations of the standards of the profession. In re: Vaughan, 00-1892 (La. 10/27/00),
772 So. 2d 87; In re: Lain, 00-0148 (La. 5/26/00), 760 So. 2d 1152; Louisiana State
Bar Ass’n v. Levy, 400 So. 2d 1355 (La. 1981). The discipline to be imposed depends
upon the facts of each case and the seriousness of the offenses involved, considered
in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La.
9/15/95), 660 So. 2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So. 2d 520
(La. 1984).
Respondent’s conduct caused actual harm to her clients by depriving them of
their funds and delaying resolution of their legal matters. The baseline sanction for
such misconduct ranges from a lengthy suspension to disbarment. See, e.g., In re:
Brown-Singh, 01-0669 (La. 4/27/01), 789 So. 2d 1256 (three-year suspension imposed
on attorney charged with several professional violations, including failing to account
for and return unearned legal fees and commingling funds); Louisiana State Bar Ass’n
v. Hinrichs, 486 So. 2d 116 (La. 1986) (setting forth the range of discipline in
conversion cases).
We find several mitigating factors are present, including respondent’s personal
and emotional problems, her general lack of a selfish motive, and her inexperience in
the practice of law at the time of the misconduct. Although these factors do not
excuse her conduct, we find they are significant in determining the sanction to be
imposed.
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Considering the facts of this case, we find the appropriate sanction for
respondent’s misconduct is a three-year suspension from the practice of law. In light
of the mitigating factors, we will defer one year of the suspension.2
DECREE
Upon review of the findings and recommendations of the hearing committee
and disciplinary board, and considering the record, briefs, and oral argument, it is
ordered that Jean Marie Lacobee, Louisiana Bar Roll number 25319, be suspended
from the practice of law in Louisiana for a period of three years, with one year of this
suspension deferred. This suspension shall be retroactive to October 30, 2002, the
date of respondent’s interim suspension. It is further ordered that respondent make
full restitution to her clients of any unearned legal fees. All costs and expenses in the
matter are assessed against respondent in accordance with Supreme Court Rule XIX,
§ 10.1, with legal interest to commence thirty days from the date of finality of this
court’s judgment until paid.
2
The disciplinary board also recommended that respondent be placed on supervised
probation for a period of two years, with specified conditions. However, conditions of
reinstatement, along with any other relevant factors, may be addressed if and when respondent
applies for reinstatement. See In re: Welcome, 02-2662 (La. 1/24/03), 840 So. 2d 519; In re: Harris,
99-1828 (La.9/17/99), 745 So.2d 1172.
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