In re Jones
| Decision Date | 21 October 2003 |
| Docket Number | No. 2002-B-3131.,2002-B-3131. |
| Citation | 859 So.2d 666 |
| Court | Louisiana Supreme Court |
| Parties | In re Johnnie A. JONES, Jr. |
Charles B. Plattsmier, G. Fred Ours, Baton Rouge, Counsel for Applicant.
Johnnie A. Jones, Jr., Lon E. Roberson, Baton Rouge, Counsel for Respondent.
ATTORNEY DISCIPLINARY PROCEEDINGS
This disciplinary 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.
Carolyn Williams retained respondent to represent 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 the other vehicle and his insurer, State Farm Mutual Automobile Insurance Company ("State Farm"). The parties conducted discovery for a period of several months after the suit was filed. In November and December 1998, respondent began to engage in settlement discussions with State Farm's in-house counsel, Sonceree Smith Clark.
According to respondent, his client instructed him to settle the case "for whatever [he] could get." Respondent represents that in December 1998, he advised Ms. Clark that he was authorized by his client to settle the case for $9,000. However, it is undisputed that at this point in time, Ms. Clark was not authorized to make a formal offer of settlement on behalf of State Farm.
On Friday, January 22, 1999, respondent received correspondence from Ms. Williams discharging him 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 respondent mentioned this fact, and 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 case for the sum of $9,000. Ms. Clark telephoned respondent and extended the settlement offer to him. The ODC alleges that respondent again 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 his client, Ms. Williams.
On the afternoon 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 motion to enforce the settlement. At the hearing on the motion, respondent testified that the $9,000 settlement offer was made by State Farm in November or December 1998, and that he accepted the offer at that time.1 State Farm subsequently 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.
Ms. Williams filed a complaint against respondent with the ODC. After an investigation, the ODC filed one count of formal charges against respondent, primarily alleging he violated Rule 1.16(a)(3) of the Louisiana Rules of Professional Conduct by failing to withdraw from the representation of a client upon being discharged.
Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits.
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 personal injury action.
2. Respondent filed suit on Ms. Williams' behalf and engaged in discovery.
3. Respondent had several telephone conversations with Ms. Williams during the course of the litigation.
4. Until 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 settlement negotiations with representatives of State Farm.
6. Upon some date in December 1998, respondent advised State Farm's inhouse counsel, Ms. Clark, that he was authorized to 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 authority to make or accept a specific offer of settlement in the case, but she did have authority to discuss settlement amounts with the respondent.
9. On January 25, 1999, Ms. Clark received authority from her superior to offer $9,000 to settle Ms. Williams' claim, and she relayed that offer to respondent's office.
10. On January 25, 1999, respondent communicated with Ms. Clark that he had been discharged.
Based on these 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 determined that nothing in the record suggests respondent assumed authority as counsel for Ms. Williams after he was discharged on January 22, 1999 or that he accepted a settlement on behalf of Ms. Williams after he was discharged. The committee also found Ms. Clark's testimony did not establish that respondent actually attempted to settle the Williams case without informing Ms. 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 committee's report and recommendation.
A majority of the disciplinary board found that the hearing committee's factual findings are supported by the record, and agreed that the committee correctly applied the Rules of Professional 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 the record supports the disciplinary board's report. After reviewing the briefs filed by both parties, the court ordered the matter docketed for oral argument.
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).
The critical issue in this case is whether the settlement was confected before or after respondent was discharged by his client on January 22, 1999. Respondent asserts that the settlement took place in December 1998, prior to his discharge, when he communicated to Ms. Clark that his client had authorized him to settle the matter for $9,000. By contrast, the ODC maintains the settlement did not occur until January 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 January 25, 1999, Ms. Clark did not have authority to 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 respondent. 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 client, he 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) (on rehearing). Rule 1.16(a)(3) requires the lawyer to withdraw from further representation of the client upon being discharged. As we explained in ...
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