Monday, December 1, 2008

Hurricane Mitigation?

The Louisiana Attorney Disciplinary Board has recommended a two year suspension and ethics school for an attorney for neglect and dishonesty (false assurances to the client and false statements in the bar investigation). The attorney, who is now living in Florida and not practicing law, had asserted as mitigation the dislocation caused by Hurricane Katrina. Bar Counsel had contended that the mitigation claim was, pardon the pun, overblown:

ODC argues in its Initial Brief that the hearing committee placed too much emphasis on the effect that Hurricane Katrina had on the Respondent as it relates to his alleged misconduct. ODC argues that much of the Respondent’s neglect of Mr. Bolling’s case occurred between the March 29, 2004 filing of the lawsuit and the August 29, 2005 date of Hurricane Katrina. ODC maintains that by the time the hurricane struck, Mr. Hebert’s failure to act with due diligence and failure to communicate accurately and truthfully with his client had already caused harm to Mr. Bolling. Moreover, Mr. Bolling’s complaint was received by ODC in April of 2005, it was delivered to Respondent’s office on April 27, 2005, and the Respondent filed his misleading response to the complaint on May 12, 2005, all before the time the hurricane struck. According to ODC, the only post-hurricane misconduct of the Respondent occurred at the March 3, 2006 sworn statement, where Respondent continued to provide the same false and misleading information that he had provided in his May 12, 2005 pre-hurricane response. Because of this, ODC apparently maintains that the mitigating factor of personal problems should not be given the amount of weight it was given by the committee. Instead, ODC suggests that the correct legal conclusion is that the aggravating and mitigating factors balance out one another, and that there is no basis upon which to deviate from the baseline sanction of a two year suspension.

The board agreed that the mitigating and aggravating evidence balanced out. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/12/the-louisiana-a.html

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