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4/3/01

SUPREME COURT OF LOUISIANA NO. 00-B-1939

IN RE: JOHNNIE A. JONES, SR.

ATTORNEY DISCIPLINARY PROCEEDINGS PER CURIAM
This attorney disciplinary proceeding arises from the filing of formal charges by the Office of Disciplinary Counsel ("ODC") against respondent, Johnnie A. Jones, Sr., an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS The Davis Matter On February 6, 1995, Alyssa Davis retained respondent to represent her in a personal injury matter after she discharged her former attorney, L.D. Sledge. Pursuant to the contract between respondent and Ms. Davis, respondent was entitled to receive a maximum 40% contingency fee. Subsequently, respondent negotiated a settlement on behalf of his client. Respondent withheld his 40% contingency fee from the disbursement. However, he also withheld an additional sum of $1,144.94 from the client's portion of the settlement, representing the negotiated amount in fees due to Mr. Sledge.1 Respondent never mentioned to his client that he was not entitled to retain the excess amount of attorney's fees. Ms. Davis filed a complaint with the ODC. After receiving the complaint,

The record indicates Mr. Sledge's negotiated legal fee was $1,500.00 with $355.06 of the amount representing his litigation costs. However, respondent indicates in his brief that Mr. Sledge's "out-of pocket" expenses are actually $437.84.

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respondent adhered to his position that he was entitled to withhold Mr. Sledge's attorney fee from Ms. Davis' portion of the settlement, rather than from his 40% contingency fee, despite controlling law to the contrary.

The Mitchell Matter In an unrelated matter, Clem Mitchell retained respondent to represent him in a criminal case, as well as related civil service and worker's compensation proceedings. Mr. Mitchell paid respondent $7,000 for the full representation on November 29, 1997. Respondent performed minimal work on behalf of Mr. Mitchell. Two months later, Mr. Mitchell discharged respondent and requested an accounting and return of the unearned fee. Respondent failed to comply with either request, alleging he earned the entire fee.

DISCIPLINARY PROCEEDINGS Formal Charges The ODC filed formal charges in the Davis and Mitchell matters, alleging violations of Rules 1.5 (failure to assess reasonable fee), 1.5(f)(6) (failure to refund unearned fee or place funds in trust when fee dispute arose), 1.15(b) (failure to safe keep client property) and 1.16(d) (failure to protect client interests at termination of representation) of the Rules of Professional Conduct. Although respondent did not file an answer to the charges, he requested that he be given the opportunity to attend the hearing. A formal hearing was conducted and respondent represented himself in proper person. As to the Davis matter, respondent testified he failed to see what he did wrong. He alleged Ms. Davis never told him about any amounts owed to Mr. Sledge

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and that he would not have taken the case if he thought Mr. Sledge's monetary interests would have impinged on his contractual entitlement to his legal fee. Because Mr. Sledge's fee was a debt incurred by Ms. Davis, respondent reasoned she should be accountable for the amount. As to the Mitchell matter, respondent testified he fully earned the $7,000 fee through the course of his representation. However, Mr. Mitchell testified respondent provided very few services, some of which were detrimental to him. He stated he terminated respondent from his case two months after payment of the legal fee because he was unsatisfied with respondent's handling of the matter. Kevin Monahan, Mr. Mitchell's new counsel, and Tracey Ewing, the assistant district attorney assigned the criminal case, testified Mr. Monahan performed the overwhelming majority of the work on Mr. Mitchell's case. Ms. Ewing maintained she had virtually no contact with respondent during his short tenure as representing counsel. At the conclusion of the hearing, the committee requested that each of the parties file a post-hearing brief. Moreover, it requested that respondent produce his financial records regarding the clients at issue. Respondent failed to comply in any respect.

Hearing Committee Report As to the Davis matter, the hearing committee found respondent violated Rule 1.15 of the Rules of Professional Conduct by wrongfully disbursing funds belonging to his client. It cited this court's opinion in Saucier v. Hayes Dairy Products, 373 So. 2d 102 (La. 1978) (on rehearing), for the proposition that in cases where an attorney is discharged and a subsequent attorney is hired, the client should be exposed to no more than one contingency fee.

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As to the Mitchell matter, the committee found respondent failed to account for his fee. However, the committee found insufficient evidence of a violation of Rule 1.5(f)(6), relating to a failure to return unearned fees, because it was unclear which part of the fee should be returned.2 In determining a sanction, the committee relied on the presence of several aggravating factors, finding a pattern of misconduct, refusal to acknowledge wrongful conduct, indifference to making restitution, indifference to proceedings by failing to file post-hearing brief and requested financial information, flagrant disregard for the disciplinary process and substantial experience in the practice of law. Based on these factors, the hearing committee proposed respondent be suspended from the practice of law for a period of one year and one day. It further ordered respondent to make restitution in the amount of $1,500 to Ms. Davis, as well as submit to arbitration of the fee dispute with Mr. Mitchell.

Disciplinary Board The disciplinary board concurred in most of the findings of the hearing committee. However, the board concluded the committee erred in failing to find a violation of Rule 1.5(f)(6), because the record indicated respondent did not place any of the disputed funds in his trust account and failed to provide an accounting to his clients. It further recognized respondent refused to provide requested financial information to the ODC. In addition to the aggravating factors cited by the hearing committee, it also considered respondent's prior discipline.3

Although the committee stated there was insufficient evidence of a violation of Rule 1.15, it is obvious the committee intended to cite Rule 1.5, which relates to a failure to refund unearned fees. Respondent was suspended from the practice of law for six months stemming from his commingling of clients' funds over a period of several years. Louisiana State Bar Ass'n v. Jones, 372 So. 2d 1186 (La. 1979). In addition, respondent received a private reprimand in 1978. 4
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After considering these factors, the board adopted the committee's proposed sanction of a one year and one day suspension. Although it "strongly suggested" respondent submit to fee arbitration in the Mitchell matter, it did not recommend respondent be mandated to do so, as the hearing committee had suggested. Respondent filed an objection in this court to the disciplinary board's recommendation. Accordingly, the matter was docketed for oral argument pursuant to Supreme Court Rule XIX,

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