Thursday, December 6, 2018

Heirs Unapparent

The Louisiana Supreme Court on these facts found by a hearing committee imposed a six-month suspension with all but 30 days deferred

After considering the testimony and evidence presented at the hearing, the hearing committee found the following: Respondent admitted he was hired by Cedric’s siblings to open Ethel’s succession and was paid a portion of the fee to be attributed to Cedric. Respondent contended he did not ask, and was not told, that Cedric was an actual heir entitled to a share of the succession. After Ethel’s death, Angela set up an appointment with respondent about handling the succession. Angela, Pamelian, and Cedric were all present at the meeting to discuss the succession with respondent. During the meeting, respondent agreed to handle the succession for a flat fee of $1,800. Respondent received information mainly from Angela, and the petition for possession he prepared did not include Cedric as an heir. The evidence showed respondent prepared an affidavit of death, domicile, and heirship based upon information provided by Angela and Pamelian, and they signed the affidavit under oath; the affidavit did not include Cedric as an heir. Ultimately, Cedric hired Ms. Shapiro to reopen the succession, and respondent filed an answer on behalf of Angela and Pamelian to reject Cedric’s claims. Shortly thereafter, respondent sent Angela and Pamelian a disengagement letter.

Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Respondent engaged in a conflict of interest when he represented Angela and Pamelian after Cedric, his other client, filed a petition to annul the judgment of possession. Once Cedric moved to reopen the succession, respondent should have immediately withdrawn from representing any party in the proceeding. The committee determined that respondent negligently violated duties owed to Cedric, causing Cedric actual harm.

Justice Weimer concurred and dissented

I believe this young attorney found himself embroiled in a contest among siblings, and he naively relied on affidavits submitted from only one side of that rivalry. Therefore, I believe a shorter period of actual suspension would adequately serve the purposes of the disciplinary system. I further note that the hearing committee suggested a fully deferred suspension, and the disciplinary board found no aggravating factors, but several mitigating factors. Those mitigating factors are: the absence of a prior disciplinary record; the absence of a dishonest or selfish motive; full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings; inexperience in the practice of law; and remorse.

Accordingly, I respectfully dissent inasmuch as I would defer a greater portion of respondent’s suspension. I otherwise concur in the sanction and underscore the appropriateness of respondent’s probation with the conditions of successful completion of Ethics School and restitution of $600 plus legal interest to Mr. Duncan.

Justice Hughes would fully defer the suspension. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/12/the-louisiana-supreme-court-justice-weimer-concurred-and-dissented-i-believe-this-young-attorney-found-himself-embroiled-in.html

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