Lawyers' disciplinary counsel alleges misconduct

The following is the text of a document released by the Louisiana Attorney Disciplinary Board:

SERRETT, RANDALL

07-DB-020 & 07-DB-056 (02/06/2008)

LOUISIANA ATTORNEY DISCIPLINARY BOARD

IN RE: RANDALL P. SERRETT

DOCKET NO: 07-DB-020 c/w 07-DB-056

REPORT AND RECOMMENDATIONS OF HEARING COMMITTEE

STATEMENT OF THE CASE

These proceedings arise out of two complaints of alleged misconduct by Randall P. Serrett ("Respondent"). On September 22, 2006, the Office of Disciplinary Counsel ("ODC") received a complaint from Mr. and Mrs. Blayne Toucheck. Following investigation ODC filed formal charges on May 31, 2007. Respondent was properly served. Rule XIX, Section 11E (3) requires the filing of a written answer within 20 days of service. He did not.

On September 22, 2006, the ODC received a second complaint from Ms. Gari Richman of McLeod-Trahan-Sheffield Physical Therapy Services, Inc. Following investigation of the matter, ODC filed formal charges on October 10, 2007. Respondent was properly served. Rule XIX, Section 11E (3) requires the filing of a written answer within 20 days of service. Again, he did not.

On November 9, 2007, Disciplinary Counsel filed motions to declare the factual allegations contained in both sets of formal charges deemed proven and to schedule written arguments. Additionally, ODC requested in a separate motion that the two matters be consolidated and submitted to one hearing committee for review.

Mr. David A. Hurlburt, chair of Hearing Committee Number Nineteen, granted ODC's motions on December 3, 2007. Respondent was given twenty days in which to ask that the order be recalled. Additionally, the parties were ordered to file written arguments and documentary evidence on the issue of sanctions on or before January 7, 2008.

FACTS AND EVIDENCE

Formal Charges have been deemed admitted. Therefore there are no factual disputes. (The brief submitted by ODC succinctly, accurately and completely addresses the facts and law. As a result this Committee borrows from it liberally.)

The Louisiana Supreme Court explained the deemed admitted rule in In re Donnan, 2001-3058 (La. 1/10/03), 838 So. 2d 715. In Donnan, the Court said:

the 'deemed admitted' rule must be applied as it is written. That rule states in unambiguous terms that if the respondent attorney does not timely answer formal charges of misconduct, the 'factual allegations contained within the formal charges' shall be deemed admitted and proven by clear and convincing evidence. Thus, the Office of Disciplinary Counsel bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of ' 11(E) (3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion that the Office of Disciplinary Counsel seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In other words, mere allegations of a rule violation, without specific factual allegations or supporting evidence, is insufficient to prove misconduct by the requisite 'clear and convincing' standard."

Id. at 720.

The Committee finds the formal charges encompass enough facts to support the alleged rule violations. Additionally, the Committee considered the written documentation submitted by ODC for context to determine sanction and such buttresses the formal charges.

The formal charges as deemed admitted allege the following:

I. Board Docket no. 07-DB-020

COUNT I

On September 22, 2006, the Office of Disciplinary Counsel received a complaint from Mr. and Mrs. Blayne Toucheck ("Complainants"). According to information contained in the complaint, Complainants retained Mr. Randall P. Serrett ("Respondent") in 1998 to assist in an adoption matter. On May 22, 1998, Respondent prepared a "Provisional Custody by Mandate" form. The form was executed by the biological mother and given to Complainants. Although Complainants maintained communication with Respondent, Respondent failed to take any additional action with regard to their legal matter until August 2005. At that time, Respondent drafted additional documents, including a petition for adoption, voluntary act of surrender, and proposed judgment. The voluntary act of surrender was executed by the biological parents and the petition for adoption was executed by Complainants. However, Respondent did not file the documents.

Complainants left Respondent's office believing that the only thing remaining to be done to complete the adoption was to appear before a judge and obtain an executed judgment. After not hearing from Respondent for an extended period of time, Complainants contacted a second attorney, who advised Complainants that the provisional custody document they had was defective and not valid. Complainants contacted Respondent and obtained a refund of the $600 fee they had paid and a copy of their file. Upon review of their file, Complainants learned that Respondent had failed to file the documents. Thereafter, Complainants filed this complaint.

Furthermore, at their appearance for a sworn statement on March 2, 2007, Complainants advised that Respondent "kept on making promises that he was going to [finalize the adoption] in a couple of months[,] "[g]ave [them]the run around", and made other promises concerning his intent to complete the adoption.

On October 30, 2006, Respondent filed a written response, wherein he admitted the "allegations as asserted". Upon request, Respondent submitted a supplemental response, wherein he advised he had procured voluntary surrender from the biological parents and had drafted the petition. Respondent admitted he failed to file the petition on behalf of Complainants.

Respondent's failure to act with reasonable diligence and promptness in representing a client is in violation of Rule 1.3; Respondent's failure to keep the client reasonably informed about the status of a legal matter is in violation of Rule 1.4(a); and Respondent's misrepresentation of the status of the legal matter is in violation of Rule 8.4(c).

II. Board Docket no. 07-DB-056

COUNT I

On September 22, 2006, this office received a complaint from Ms. Gari Richman of McLeod-Trahan-Sheffield Physical Therapy Services, Inc. ("Complainant"). According to information contained in the complaint, Mr. Randall P. Serrett ("Respondent") had endorsed agreements guaranteeing payment for medical services rendered to two of his clients, Clint Guidry and Joshua Domingue. The agreement for Mr. Guidry was executed in June 1996; the agreement for Mr. Domingue was executed in April 2000. According to Complainant, over the years, numerous attempts have been made to have Respondent pay the costs associated with the medical services Mr. Guidry and Mr. Domingue received. At one point, Respondent informed Complainant that the cases had settled, but that funds from the settlement had been embezzled by Respondent's former secretary, leaving him unable to satisfy his financial obligations. Respondent made repeated promises to pay, but failed to do so prior to the filing of the complaint.

Upon receiving a copy of the complaint, on October 17, 2006, Respondent submitted a written response, wherein he stated that he had contacted the chiropractor's office and that the matter was "being settled." Upon request, Respondent provided a supplemental response, wherein he admitted to the allegations contained in the complaint. As mitigation, Respondent indicated that during the period in question due to family-related health issues he had turned over the day-to-day operation of his civil practice to his secretary. In addition to his civil practice, Respondent maintained a part-time position with the local district attorney's office. Respondent stated that when he closed his private practice in 2001 to accept a full-time position with the district attorney's office he discovered that his secretary had embezzled funds. Respondent stated that while his secretary filled out checks for third-party providers in the Guidry and Domingue matters, which he endorsed, he later learned that his secretary did not mail those checks. Instead, she wrote and cashed checks payable to herself and embezzled the funds designated for the third-party providers.

Respondent appeared for a sworn statement on December 7, 2006. At that time, Respondent advised that he had been financially unable to make any payments to McLeod-Trahan-Sheffield. At his sworn statement, Respondent again admitted that the allegations contained in the complaint were true. Respondent provided a copy of the Guidry file, which indicated that Mr. Guidry's matter had been settled in August 2000 for $3,216.19. Of that money, Respondent withheld $1,716.19 to pay third-party medical providers, including McLeod-Trahan-Sheffield. Respondent stated he was unable to locate his file for the Domingue matter. However, he did acknowledge that the matter had been settled, with appropriate funds withheld to pay third-party medical providers. According to Respondent, in each instance, the funds were deposited into his trust account.

By letter dated February 6, 2007, Complainant advised that Respondent paid in full the outstanding costs of $2,376.95. Respondent asserts that to the best of his knowledge all other third-party medical providers have been paid.

Respondent's failure to promptly deliver funds in which a third person has an interest is in violation of Rule 1.15(b) of the Rules of Professional Conduct. Respondent's failure to properly supervise a non-lawyer assistant is in violation of Rules 5.3(a) and 5.3(b) of the Rules of Professional Conduct.

DOCUMENTARY EVIDENCE

In addition to the record, the Committee considered the following documents

Submitted by ODC:

I. Board Docket no. 07-DB-020

1. Copy of the complaint with attachments;

2. Copy of notice to Respondent dated October 16, 2006;

3. Copy of domestic return receipt dated October 18, 2006;

4. Copy of response from Respondent dated October 30, 2006;

5. Copy of request for supplemental response dated November 2, 2006;

6. Copy of supplemental response dated November 13, 2006;

7. Copy of transcript of sworn statement of Respondent taken on December 7, 2006; and

8. Copy of transcript of sworn statement of Complainants taken on March 2, 2007.

II. Board Docket no. 07-DB-056

9. Copy of the complaint with attachments;

10. Copy of notice to Respondent dated October 2, 2006;

11. Copy of domestic return receipt dated October 3, 2006;

12. Copy of response from Respondent dated October 17, 2006;

13. Copy of request for supplemental response dated October 19, 2006;

14. Copy of supplemental response dated October 23, 2006;

15. Copy of transcript of sworn statement of Respondent taken on December 7, 2006;

16. Copy of additional response from Respondent dated December 21, 2006;

17. Copy of Joshua Domingue file provided by Respondent; and

18. Letter from complainant dated February 6, 2007, indicating Respondent paid costs.

III. Additional Documents

1. A complete copy of the Admonition for Respondent, signed and dated July 2, 2001, identified as Exhibit "19"; and

2. A complete copy of the Admonition for Respondent, signed and dated November 28, 2005, identified as Exhibit "20".

FINDINGS OF FACT

The Committee after considering the record: the deemed admissions: and the additional evidence listed above finds that factually the ODC has proven its case by clear and convincing evidence.

DISCUSSION OF THE APPROPRIATE SANCTION

I. Application Of Factors Considered In Imposing Sanctions

Louisiana Supreme Court Rule XIX, Section 10(C) states that in imposing a sanction the Committee, Board and Court 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 misconduct; and

(4) the existence of any aggravating or mitigating factors.

The evidence supports the finding that Respondent knowingly, if not intentionally, engaged in misconduct. Furthermore, the record shows that Respondent's actions violated duties owed to his clients and the legal profession.

Respondent's knowing, if not intentional, failure to diligently pursue the Toucheck's legal matter and to truthfully communicate with his clients has injured the Touchecks by unnecessarily delaying the adoption proceeding. Furthermore, because the adoption process was not completed the Touchecks faced the potential for serious harm the loss of the child they desired to adopt.

McLeod-Trahan-Sheffield Physical Therapy Services suffered actual harm, but to a much lesser degree, as the provider was deprived of funds rightfully due them for an extended period of time. Furthermore, Respondent exposed his two clients, Mr. Guidry and Mr. Dominque, to the possible harm of having to pay McLeod-Trahan-Sheffield from their own funds. Ultimately Respondent satisfied the debt.

Pursuant to Standards 9.22 of the ABA Standards for Imposing Lawyer Sanctions, the following aggravating factors are present:

(a) Prior disciplinary offenses;[1]

(c) A pattern of misconduct;

(d) Multiple offenses;

(h) Vulnerability of victims (the Touchecks);

(j) Indifference to making restitution; and

(i) Substantial experience in the practice of law (Respondent was admitted to practice law in Louisiana October 10, 1986).

Pursuant to Standards 9.32 of the ABA Standards for Imposing Lawyer Sanctions, the sole mitigating factor present, here, is the existence of personal or emotional problems at the time of the misconduct.

II. Determination of Baseline Sanction

A. ABA Standards

The Louisiana Supreme Court relies on the ABA's Standards for Imposing Lawyer Sanctions to determine the baseline sanction by "the type of duty violated, the lawyer's mental state and the extent of the injury caused; and then adjust the sanction in accordance with the aggravating and mitigating factors present." In re Quaid, 94-1316 (La. 11/30/94); 646 So. 2d 343, 350.

Standard 4.41 provides for suspension when "a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client." Standard 4.62 provides for suspension "when a lawyer knowingly deceives a client, and causes serious injury or potentially serious injury to a client.

Respondent has failed to diligently pursue legal matters on his clients' behalf. Furthermore, Respondent knowingly deceived the Touchecks by falsely informing them that he had filed pleadings on their behalf. As a result of Respondent's misconduct, his clients' legal matter was unnecessarily delayed.

Standard 4.12 provides for suspension when "a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client." Respondent failed to timely pay a medical provider who treated two of his clients. The third-party provider suffered actual harm by being deprived of funds rightfully due them for an extended period of time. Additionally, potential injury to the clients existed given the fact that Respondent's clients may have been required to pay a debt for which Respondent already withheld funds.

Standard 8.3(b) provides for reprimand when a lawyer has received an admonition for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession." As noted above, Respondent previously received an admonition for neglect of a client's legal matter.

B. Relevant Case Law

The Louisiana Supreme Court also looks to relevant case law for assistance in determining an appropriate sanction for violation of the Rules of Professional Conduct. ODC cited to the Committee the following cases: In re Cannizzaro, 2000-0413 (La. 3/17/00), 758 So. 2d 780; In re Sabludowsky, 2000-0891 (La. 6/16/00), 761 So. 2d 1283; In re Alex, 2002-1289 (La. 1/14/03), 835 So. 2d 455; In re Bradley, 2004-0169 (La. 6/4/04), 875 So. 2d 67; and In re Boudreau, 2000-3158 (La. 1/5/01), 776 So. 2d 428. The Committee has reviewed all of that jurisprudence and finds In re Cannizzaro, supra, the most helpful as, factually, it is most similar.

In Cannizzaro, supra, a ten-month suspension was imposed for an attorney's lack of diligence, failure to communicate with a client, and failure to safeguard funds owed to a third-party medical provider. A client retained Cannizzaro to represent him in a personal injury claim. The case settled, and when Cannizzaro disbursed the settlement proceeds he retained $660 to pay a third-party medical provider. However, Cannizzaro failed to pay the medical provider promptly and failed to properly safeguard the funds he retained for that purpose.

In an unrelated case, a client retained Cannizzaro to handle a child custody and criminal matter. Cannizzaro failed to adequately communicate with the client and eventually was dismissed by the client.

III. Recommended Sanction

In accordance with the ABA guidelines and prior jurisprudence, Respondent's misconduct clearly merits a period of suspension. The misconduct in the instant matter is more closely aligned to that seen in Cannizzaro. Therefore, the Committee recommends Respondent be suspended from practicing law for a period of ten months and pay all costs herein.

Hearing Committee #19

For the Committee:

s/ David A. Hurlburt

Date: January 28, 2008

Other committee Members:

Kyle Polozola, Lawyer member

Richard E. Roberson, Public member

[1] On July 9, 2001, the Disciplinary Board issued an admonition to Respondent for his failure to promptly refund an unearned fee and, subsequently, issuing an "NSF" check to his client for the unearned fee, in violation of Rules 1.5(f) and 1.15(c) of the Rules of Professional Conduct. Board Docket no. 01-ADB-032. On December 5, 2005, the Disciplinary Board issued an admonition to Respondent for his failure to diligently pursue a client's legal matter, allowing the client's claim to prescribe. Board Docket no. 05-ADB-038.