IN RE: JOHNNIE A. JONES, JR.

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 71 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 21st day of October, 2003, are as follows: PER CURIAM: 2002-B -3131 IN RE: JOHNNIE A. JONES, JR. (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 Johnnie A. Jones, Jr., Louisiana Bar Roll number 1083, be suspended from the practice of law in Louisiana for a period of three months. It is further ordered this suspension shall be fully deferred, and respondent shall be placed on probation for a period of two years. Any misconduct during the probationary period may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. 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. JOHNSON, J., dissents and assigns reasons. 10/21/03 SUPREME COURT OF LOUISIANA NO. 02-B-3131 IN RE: JOHNNIE A. JONES, JR. ATTORNEY DISCIPLINARY PROCEEDINGS PER CURIAM This d is cip linary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel ( ODC ) against respondent, Johnnie A. Jones, Jr., an attorney licensed to practice law in Louisiana. UNDERLYING FACTS Carolyn Williams retained respondent to repres ent her in connection with a claim for damages resulting from a 1996 automobile accident. Respondent filed suit on behalf of Ms. Williams and her minor children against the driver of t h e o ther vehicle and his insurer, State Farm M u t u al Automobile Insurance Company ( State Farm ). The parties conducted discovery for a perio d o f s ev eral months after the suit was filed. In November and December 1998, respondent began to engage in settlement discussions with State Farm s in-hou s e co u n sel, Sonceree Smith Clark. According to respondent, his client instructed him to settle t h e case for whatever [he] co u ld g et. Respondent represents that in December 1998, he advised Ms. Clark that he was au t h o rized by his client to settle the case for $9,000. However, it is undisputed that at this point in time, M s . Clark was not authorized to make a formal offer of settlement on behalf of State Farm. On Friday, January 22, 1999, respon d en t received correspondence from Ms. Williams discharging h im as her attorney. On the morning of the following Monday, January 25, 1999, respondent telephoned Ms. Clark to discuss the Williams case. It is respondent s contention that he told Ms. Clark during this conversation that he had been discharged by his client; however, Ms. Clark denies that res p o ndent mentioned th is fact , an d she testified that respondent called her to ask if she had received any authority to settle the Williams case. Ms. Clark then telephoned John Ozier, the State Farm claims superintendent overseeing Ms. Williams case, who in turn authorized Ms. Clark to settle the cas e fo r t he sum of $9,000. Ms. Clark telephoned respondent an d extended the settlement offer to him. The ODC alleges that respondent ag ain failed to advise Ms. Clark that he had been discharged by his client, and that he accepted State Farm s settlement offer without the knowledge or consent of h is client, Ms. Williams. On t h e aft ernoon of Monday, January 25, 1999, Ms. Clark hand delivered Ms. Williams settlement check to respondent s office. By letter dated the same day and apparently faxed to Ms. Clark s office sometime after the check was delivered, respondent advised Ms. Clark that he had been discharged by his client and that she had refused to accept the $9,000 check. Thereafter, State Farm filed a mo tion to enforce the settlement. At the hearing on the motion, respondent testified that the $9,000 settlement o ffer was made by State Farm in November or December 1998, and that he accepted the offer at that time.1 State Farm subs eq u en t ly withdrew its motion upon learning that Ms. Williams had discharged respondent three days prior to the settlement, not after the settlement, as Ms. Clark had been led to believe. Respondent also testified that State Farm issued a settlement check in late December 1998, though in an incorrect amount, and that the check issued on January 25, 1999 w as s imp ly a replacement check in the correct amount. There is no support for this contention in the record. 1 2 DISCIPLINARY PROCEEDINGS Ms. Williams filed a complaint against responden t with the ODC. After an in v es t ig ation, the ODC filed one count of formal charges against respondent, primarily alleg ing he violated Rule 1.16(a)(3) of the Louisiana Rules of Professional Conduct by failing to withdraw from the representation of a clien t u p o n b eing discharged. Respondent ans wered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits. Hearing Committee Recommendation Considering the evidence presented at the hearing, the hearing committee made the following factual findings: 1. Ms. Williams retained respondent s services to pursue a p ersonal injury action. 2. Respondent filed su it on Ms. Williams behalf and engaged in discovery. 3. Respondent h ad several telephone conversations with Ms. Williams during the course of the litigation. 4. Un t il discharge, respondent was endowed with full discretion from Ms. Williams to settle her claim for as much as possible. 5. Until discharge, respondent was engaged in active set t lement negotiations with representatives of State Farm. 6. Upon some date in December 1998, respondent advised State Farm s in-house counsel, Ms. Clark, that he was authorized t o settle Ms. Williams case for $9,000. 7. Respondent was discharged by Ms. Williams on January 22, 1999. 8. Until January 25, 1999, Ms. Clark did not have au t h o rit y to make or accept a specific offer of settlement in the case, bu t s h e d id 3 have authority to respondent. 9. 10. d is cu s s settlement amounts with the On January 25, 1999, Ms. Clark receiv ed authority from her superior to offer $9,000 to settle Ms. Williams claim, and she relayed that offer to respondent s office. On January 25, 1999, res p o ndent communicated with Ms. Clark that he had been discharged. Based on th es e factual determinations, the hearing committee concluded that respondent did not violate the Rules of Professional Conduct as charged in the formal charges. In particular, the committee d et ermined that nothing in the record suggests respondent as s u med authority as counsel for Ms. Williams after he was discharged on January 22, 1999 or that h e accep ted a settlement on behalf of Ms. Williams after he was discharged. The committee als o found Ms. Clark s testimony did not establish that respondent actually at t empted to settle the Williams case without info rmin g M s. Clark that he had been discharged. Based on this reasoning, the committee recommended the formal charges against respondent be dismissed. The ODC filed an objection to the hearing co mmittee s report and recommendation. Disciplinary Board Recommendation A majority of the disciplinary board found t h at the hearing committee s factual findings are supported b y the record, and agreed that the committee correctly applied the Rules o f Pro fes sional Conduct. Accordingly, the board recommended the formal charges against respondent be dismissed. Two members of the board dissented. The ODC sought review of the board s ruling in this court. On January 2, 2003, the court ordered the parties to submit briefs addressing the issue of whether 4 the record supports the disciplinary board s report. After reviewing th e b riefs filed by both parties, the court ordered the matter docketed for oral argument. 5 DISCUSSION Bar disciplinary matters come wit h in t he original jurisdiction of this court. La. Co n s t . art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of t h e record to determine whether the alleged misconduct has been p roven 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). The crit ical issue in this case is whether the settlement was confected before or after respondent was dis ch arged by his client on January 22, 1999. Respondent asserts that the settlement took place in December 1998, prior to his discharge, when h e co mmu nicated to Ms. Clark that his client had authorized him to settle the mat t er for $9,000. By contrast, the ODC maintains the settlement did not o ccu r u ntil Jan uary 25, 1999, after respondent s discharge, when Ms. Clark received authority from her superior to offer $9,000 to settle the claim, and she relayed that offer to respondent s office. The hearing committee made a finding of fact that prior to Jan u ary 25, 1999, Ms. Clark did not have authority t o make or accept a specific offer of settlement in the case. This factual finding is supported by the undisputed testimony in the record from Ms. Clark as well as responden t . Accepting this factual finding, we conclude the settlement could not have been confected prior to January 25, 1999. Therefore, at the time respondent purported to accept the settlement on behalf of his clien t , h e had already been discharged. It is well settled that a client has an absolute right to discharge his or her lawyer at any time. Saucier v. Hayes, 373 So. 2d 102 (La. 1978) (o n reh earing). Rule 1.16(a)(3) requires the lawyer to withdraw from further representatio n o f t h e 6 client upon being discharged. As we explained in Scott v. Kemper Insurance Co., 377 So. 2d 66, 70 (La. 1979), an at t o rney may not force his continued representation [o n ] a client who wishes to discharge him. . . . Respondent breached this fundamental tenet wh en h e accepted State Farm s settlement offer on behalf of his client after he was discharged. Having found professional misconduct, we con clu d e the hearing committee and disciplinary board erred in d ismissing the charges against respondent. We now turn to a d is cu ssion of the appropriate sanction for respondent s misconduct. Th e purpose of disciplinary proceedings is not primarily to punish the lawy er, but rather to maintain the appropriate standards of professional conduct, t o p reserve the integrity of the legal profession and to d et er o ther lawyers from engaging in violations of the standards of the p ro fes s io n. 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 d iscipline to be imposed d epends upon the facts of each case and the seriousness of the offenses involved, cons id ered 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). As previously noted, respondent s misconduct g o es to the heart of the attorney-client relationship. The relation of attorney and client is on e of special confidence and trust and the dignity and in t egrity of the legal professional demand that the interes t s of the client be fully protected. Saucier, 373 So. 2d at 111 (Dennis, J. dissenting). By failing to respect his client s absolute right to discharge him, respondent has harmed the integrity of the legal profession. 7 Based on our review of the record as well as respondent s oral argument before this court, we find responden t was erroneous in his contention that the settlement was confected in December 1998, prior to his discharg e. Nevertheless, we conclude he did not intentionally act in an effort to disadvantage his client. While respondent s state of mind does not excuse his actio n s , it serves to mitigate the sanction to be imposed for his misconduct. In re: Sharp, 01-1117 (La. 12/7/ 01), 802 So. 2d 588. Additionally, we observe that respondent s actions caused no significant harm to his client, as the settlement was ultimately not enforced against her. Under the fact s of this case, we conclude the appropriate sanction for respondent s misconduct is a three-month suspension from th e p ractice of law. In light of the mitigating circumstances, we will defer this s u s p ension in its entirety and place respondent on probatio n fo r a period of two years, with the provision that any miscon d uct during the probationary period may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. DECREE Upon review of the findings and recommendations of the h earin g committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Johnnie A. Jones, Jr., Louisiana Bar Roll number 1083, be suspended from the practice of law in Louisiana for a period of three months. It is further ordered this suspens io n s h all be fully deferred, and respondent shall be placed on probation for a period of two years. Any mis co n duct during the probationary period may be grounds for making the deferred suspen s io n executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against responden t in accordance with Supreme Court Rule XIX, § 10.1, with legal 8 in terest to commence thirty days from the date of finality of this court s ju d g men t until paid. 9 10/21/03 SUPREME COURT OF LOUISIANA No. 02-B-3131 IN RE: JOHNNIE A. JONES JR. ATTORNEY DISCIPLINARY PROCEEDINGS JOHNSON, Justice, dissenting While we are not bound in any way by the findin g s an d reco mmendations of the hearing committee and discip lin ary board, we have held that the manifest error standard is applicable to the committee's factual findings. See In re: Dunn, 02-2165 (La. 11/8/02), 831 So.2d 889; In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150. In this case, following a formal hearin g o n t he merits, the hearing committee made certain factual findings and ultimately recommen d ed that the formal charges against Mr. Jones be dismissed. A majority of the discip lin ary board agreed. Based on my review, I believe that t h e reco rd s upports the findings of fact made by the h earing committee, and in my opinion, the disciplinary board reached the co rrect result in dismissing the formal charges. disposition. Hence, I would affirm the board s

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