Louisiana State Bar Ass'n v. McGovern, 84-B-2098

• Decision Date: 13 January 1986
• Docket Number: No. 84-B-2098,84-B-2098
• Citation: 481 So.2d 574
• Parties: LOUISIANA STATE BAR ASSOCIATION v. James D. McGOVERN.
• Court: Louisiana Supreme Court

Page 574

481 So.2d 574

LOUISIANA STATE BAR ASSOCIATION v. James D. McGOVERN.

No. 84-B-2098.

Supreme Court of Louisiana.

Jan. 13, 1986.

Thomas O. Collins, Jr., Wood Brown, III, New Orleans, Carrick R. Inabnett, Monroe, Roland J. Achee, Shreveport, Robert J. Boudreau, Lake Charles, Frank J. Gremillion, Baton Rouge, Harvey Lewis, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pee, Metairie, Gerard F. Thomas, Jr., Natchitoches, for applicant.

George M. Papale, Stumpf, Dugas, LeBlanc, Papale & Ripp, Gretna, James D. McGovern, New Orleans, for James D. McGovern.

Vance E. Ellefson, New Orleans, for Louisiana State Bar Association.

DENNIS, Justice.

Petitioner, the Louisiana State Bar Association, through its Committee on Professional Responsibility, seeks the disbarment of respondent, James D. McGovern. The charges against McGovern consist of specifications of alleged misconduct involving three separate legal matters.

1. Notice of Charges

At the outset, we are faced with a problem of procedural due process. In addition to the charges made against the respondent in the bar association's suit for disbarment, the commissioner, after taking evidence, recommended the finding of additional violations not alleged in the bar association's petition. The association later filed a further pleading praying that all of the commissioner's recommendations be adopted by this court. The question raised is whether it would be a denial of due process of law for this court to find a lawyer guilty of charges based on evidence adduced at an evidentiary hearing if he was not given notice of the charges prior to the hearing.

This court has exclusive original jurisdiction of disciplinary proceedings against a member of the bar. La. Const. of 1974, Art. 5, Sec. 5(B). The rules of this court provide for the creation of the bar association, the code of professional conduct, and the procedure in disbarment suits. Rules of Supreme Court of Louisiana, Rule 19 (1973); La.R.S. 37:211, LSBA v. Edwins, 329 So.2d 437 (1976); In re Mundy, 202 La. 41, 11 So.2d 398 (1942); Hood, Renewed Emphasis on Professional Responsibility, 35 La.L.Rev. 719 (1975). Under these rules, when the bar association's Committee on Professional Responsibility is of the opinion that a lawyer is guilty of a violation of law or rule of professional conduct of sufficient gravity to show moral unfitness to practice law, it must institute a suit for disbarment or suspension by a petition which shall be served upon the respondent. Louisiana State Bar Association Articles of Incorporation, art. 15, Sec. 6(a). When issue is joined or when the respondent has not appeared to plead or answer within the time allowed, this court may hear the evidence, or we may appoint a commissioner to take the evidence. Id., section 6(b). Regardless of how the evidence is taken, this court must decide, based on the record in the case, both whether the attorney is guilty of the unethical conduct charged, as well as what penalty is appropriate if disciplinary sanctions are warranted. LSBA v. Edwins, supra; LSBA v. Wheeler, 243 La. 618, 145 So.2d 774 (1962). In re Reed, 207 La. 1011, 22 So.2d 552 (1945).

In the present case, the bar association's disbarment suit essentially charged respondent McGovern with neglect of legal matters entrusted to him and failure to refund unearned fees. A commissioner was appointed who, upon completion of the taking of the evidence, recommended that McGovern be found guilty of the original charges and several other breaches of ethical conduct as well, viz., inserting in a will a provision appointing himself as attorney for the succession without the testator's consent (DR 2-103(A)); knowingly accepting employment constituting a conflict of interest (DR 5-101(A)); accepting employment involving multiple representation and failing to disclose the resulting conflict of interest (DR 5-105(A), (B) & (C)). Because McGovern was not given fair notice of the additional violations recommended by the commissioner before evidence was taken on them, we conclude that any deprivation of the attorney's right to continue practicing law based on the uncharged violations would deny him due process of law.

Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. Ex parte Garland, 4 Wall. (71 U.S.) 333, 380, 18 L.Ed. 366, 370 (1867); Spevack v. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L.Ed.2d 574, 577 (1967). Thus, he is accordingly entitled to procedural due process, which includes fair notice of the charge. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). See In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682, 694 (1948). As stated in Randall v. Brigham, 7 Wall. (74 U.S.) 523, 540, 19 L.Ed. 285, 293 (1869), in proceedings for disbarment which are "not taken for matters occurring in open court, in the presence of judges, notice should be given to the attorney of the charges made and an opportunity afforded him for explanation and defense."

In re Ruffalo, supra involved a situation in which a lawyer had been disbarred based on a charge which was not filed until after he and his witness had testified without notice of the charge. The Supreme Court held that, because disbarment suits are adversary proceedings of a quasi-criminal nature, the defendant must know the charge before the proceedings commence; fair notice as to the reach of the disciplinary procedure and the precise nature of the charges are required by procedural due process. In reversing the disbarment decree, the high court observed:

" 'Such procedural violations of due process would never pass muster in any normal civil or criminal litigation.' "

"... [The proceedings] become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh." In re Ruffalo, 390 U.S. 544, 551; 88 S.Ct. 1222, 1226.

Likewise, McGovern had no notice that his acts or omissions in the uncharged violations would be considered disbarment offenses until after he had testified at length on all of the material facts pertaining to them and the commissioner had filed his findings based on that testimony. How the charges would have been met had they been originally included in those leveled against respondent by the bar association no one knows. Accordingly, in order to protect the respondent from an unconstitutional deprivation of due process, the violations recommended by the commissioner which were added to the initial charges of the bar association's petition will not be considered by this court.

2. The Commitment Matter

In connection with the commitment matter, the bar association notified respondent of the charges as follows:

In July of 1981, you were retained by Mrs. Ernesia D. Stuart, to perform legal work involving the judicial commitment of her son. You were paid a fee of $400.00 and received all necessary documents from Mrs. Stuart. Despite payment of said fee and repeated requests from your client, you performed little or no work for the fee paid and refused to return said fee or the documents brought to you by Mrs. Stuart. You, further, failed to communicate with your client; all in violation of Disciplinary Rule 1-102 and 6-101(A)(3) of the Canons of Professional Responsibility for the Louisiana State Bar Association.

In disciplinary proceedings, the bar association has the burden of (1) pleading the lawyer's violation of a disciplinary rule, (2) producing evidence of that violation, and (3) persuading this court as the trier of fact of existence of the violation by clear and convincing evidence. La. Const. 1974, Art. 5, Section 5(B); Louisiana State Bar Association Articles of Incorporation, Art. 5 Sec. 16; LSBA v. Edwins, 329 So.2d 437 (La.1976); LSBA v. Brown, 291 So.2d 385 (La.1974). See also LSBA v. Levy, 292 So.2d 492 (La.1974); LSBA v. Brown, 291 So.2d 385 (La.1974); In re Novo, 200 La. 833, 9 So.2d 201 (1942); Annotation, Attorneys' Misconduct--Degree of Proof, 105 A.L.R. 984 (1936); and McCormick on Evidence, Section 337 (2d ed. 1972).

From the evidence of record we find clear and convincing proof of the following: On July 1, 1981, Mrs. Ernesia D. Stuart retained McGovern to assist in returning her adult son to the Veteran's Administration Hospital in Gulfport from which he had departed without permission. The son had a long history of mental illness and violence. Mrs. Stuart had been informed by the hospital that her son could not be readmitted without a judicial commitment. McGovern requested and received $400 in advance as a retainer. He gave Mrs. Stuart a receipt marked "Retainer only, on legal problems, James E. Stuart, Jr., re VA commitment, etc." During much of the next three months McGovern was ill with diabetes and absent from his office. He did not file any commitment pleadings or write any letters to the Veteran's Administration. In September, 1981, her son became so sick that Mrs. Stuart called the police who took him to the New Orleans VA hospital. Two weeks later the son was readmitted by the Gulfport VA hospital. McGovern has not returned any part of the $400 fee.

McGovern testified that the $400 advance fee was intended as a retainer in connection with an attempt to have Mrs. Stuart's son readmitted to the hospital without an expensive judicial commitment. He testified that the day after he was retained he engaged a social worker at the Gulfport VA hospital in a 38 minute phone conversation, during which the worker ultimately agreed that the hospital would readmit Mrs. Stuart's son if he returned voluntarily. Immediately thereafter, McGovern said he received a call from his client and reported to her the results of his discussion with the social worker.

McGovern introduced handwritten notes as evidence that he researched commitment procedures on August 3, 1981. Subsequently, he stated, he...