Louisiana State Bar Ass'n v. Brown

• Decision Date: 18 February 1974
• Docket Number: No. 52272,52272
• Citation: 291 So.2d 385
• Parties: LOUISIANA STATE BAR ASSOCIATION v. John Sidney BROWN.
• Court: Louisiana Supreme Court

Page 385

291 So.2d 385

LOUISIANA STATE BAR ASSOCIATION v. John Sidney BROWN.

No. 52272.

Supreme Court of Louisiana.

Feb. 18, 1974.

Rehearing Denied March 22, 1974.

Milton P. Masinter, New Orleans, Edgar N. Quillin, Arabi, for defendant-respondent.

John F. Pugh, Chairman, Thibodaux, Curtis R. Boisfontaine, James H. Drury, New Orleans, Leonard Fuhrer, Alexandria, A. Leon Hebert, Baton Rouge, Edgar H. Lancaster, Jr., Tallulah, Henry A. Politz, Shreveport, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas O. Collins, Jr., New Orleans, for La. State Bar Association.

SANDERS, Chief Justice.

The Louisiana State Bar Association instituted this disbarment proceeding against John Sidney Bronw, an attorney, with the following specification of misconduct:

'That in October, 1969, you accepted employment as attorney for Allan John Johnston III to represent him in his claim for workmen's compensation benefits. Shortly thereafter you advised said client you had filed suit on his behalf. On December 9, 1970, you did, with intent to defraud your client, appear in the 24th Judicial District Court, Parish of Jefferson, and had approved by said court a workmen's compensation settlement in the sum of $1,500.00. To effect this settlement, you knowingly produced before the court another party posing as Allan John Johnston III. You thereafter received the moneys paid pursuant to said judgment, commingled them with your own, and converted them to your own use. Thereafter, and specifically by your letters to said client of February 18, 1971, and March 4, 1971, you attempted to mislead said client as to what settlement was being offered when, in fact, you had already settled for more and under the fraudulent facts above stated. That on August 9, 1971, a complaint was received by this Committee on behalf of Allan John Johnston III who, as of that date, had received no moneys from you on his claim.'

An investigative hearing was held by the Committee on Professional Responsibility. Concluding that the respondent attorney had been guilty of professional misconduct, the committee filed a disbarment petition in this Court.

Under the provisions of Article XV, Section 6 of the Articles of Incorporation of the Louisiana State Bar Association, a Commissioner was appointed to take evidence and to report to this Court his findings of fact and conclusions of law.

The Commissioner's hearing was held on December 6, 1972. On July 19, 1973, the Commissioner filed a report in which he found that the respondent attorney was guilty of professional misconduct of sufficient gravity to require disciplinary action.

The Commissioner found that Allan Johnston retained Mr. Brown on June 23, 1969, to represent him in a workmen's compensation proceeding. On October 23, 1969, the attorney filed suit on Johnston's behalf. The suit was entitled Allan John Johnston, III, v. Bobben Fabricators, Inc., and Continental Insurance Co. and bears the number 122--627 on the docket of the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

The Commissioner further found that on December 9, 1970, the attorney knowingly presented an imposter posing as Johnston to the District Court and to counsel for the defendants, fraudulently securing a court-approved settlement of Johnston's claim in the amount of $1500.00. Brown and the impostor then cashed the insurance draft received in the settlement and divided the proceeds.

The Commissioner made no specific finding as to that portion of the specification charging the commingling of a client's funds with his own. The only testimony as to the disposition of the settlement money is that of the respondent attorney, who testified that he received the usual attorney fee, plus an amount to pay the bill for a medical evaluation. We find no further evidence in the record to suppport the charge of commingling. Hence, that charge is rejected.

Remaining, however, is the finding of the Commissioner that respondent attorney knowingly foisted an impostor upon the court and opposing counsel for a court-approved settlement of a workmen's compensation suit, thereby committing a fraud upon the court and his client.

The respondent attorney concedes that a person other than his client appeared with him before the court and received the settlement. He denies knowledge of the fraud, asserting that he had seen his client no more than twice and that he, himself, was deceived. He intimates that he has been framed either by his client or a former associate in law practice.

The pivotal factual issue, then, is whether the attorney had knowledge of the deception and fraud, as found by the Commissioner.

In disbarment proceedings, the burden rests upon the State Bar Association to establish the professional misconduct by clear and convincing evidence.

As this Court held in In re Novo, 200 La. 833, 9 So.2d 201 (1942):

'. . . In disbarment proceedings, on the contrary, the evidence not only as to the act which forms the basis of the attorney's unprofessional conduct but also as to the motive with which the act was done, must be clear and convincing. (Citations omitted) . . . The reason for this rule is that the proceeding is not so much for the purpose of seeking the punishment of the man as it is for the preservation of the integrity of the courts and for the salutary effect it has upon the other members of the bar who practice before it. As expressed in the case of Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 588, 27 L.Ed. 552, 'The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Undoubtedly, the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an...