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4/3/01

SUPREME COURT OF LOUISIANA NO. 00-B-3105

IN RE: DANIEL R. KEELE

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, Daniel R. Keele, an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS Lutke Matter Wayne Lutke filed a disciplinary complaint against respondent with the ODC.1 Respondent failed to timely answer the complaint, and subpoenas were issued compelling his appearance and production of documents at a scheduled deposition on October 30, 1997. Although he received notice, he failed to appear, but did forward a copy of his work file to the ODC. In December of 1997, the ODC wrote to respondent advising it received his file and asked for a more substantive response. When no response was received, additional subpoenas were issued compelling his attendance and production of documents at a scheduled deposition on March 17, 1998. Again, respondent failed

The underlying complaint involved allegations that respondent neglected Mr. Lutke's legal matter, failed to account for and refund unearned fees, and commingled and converted funds. The ODC later filed formal charges based on these allegations. Following the formal hearing, the hearing committee dismissed the count for insufficient evidence. In its brief to the disciplinary board, the ODC conceded that it failed to sustain its burden regarding the matter. Therefore, these allegations (which formed the basis for count I of the instant formal charges) are not before the court and will not be addressed in this opinion.

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to appear, although he received formal notice. The ODC eventually received an answer from respondent over three months later. While he advised he failed to appear for the scheduled March deposition due to scheduling problems, he did not explain his failure to attend the October deposition.

Smith Matter In March of 1995, Hayward Smith retained respondent to institute a suit for personal injuries sustained in a vehicular accident while being transported for incarceration to the Caddo Correctional Center.2 Respondent filed the petition. Based on his preliminary investigation in the matter, he determined the case was not economically feasible to pursue. However, he failed to properly advise his client of his decision not to pursue the matter and took no further substantive action on the case for the subsequent two years. On October 9, 1997, Mr. Smith filed a disciplinary complaint with the ODC. Respondent failed to timely respond to the complaint. The ODC issued subpoenas to respondent compelling his appearance and production of documents at a scheduled deposition on January 7, 1998, but respondent failed to appear.3 In a letter dated April 1, 1998, the ODC asked respondent for a case status report and explanation of why he failed to honor the subpoena. Respondent replied to the letter on May 11, 1998 stating he was "taking steps to move his litigation forward now that he was back in communication with his client." On July 1, 1998, not being satisfied with respondent's prior response, the ODC requested documentary proof of the status of the case. At

Respondent had represented Mr. Smith in the earlier criminal proceeding which gave rise to the incarceration. There seems to be some question as to whether respondent even received the subpoena since there is no proof in the record the subpoena had been served. 2
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some point, respondent provided a response, because on July 30, October 22 and November 23, 1998, the ODC wrote to respondent insisting upon an answer to its inquiry. Respondent failed to file an answer.

Hariston Matter In 1996, respondent was appointed to represent John Hariston in criminal proceedings. Subsequently, Mr. Hariston filed a disciplinary complaint against respondent with the ODC alleging ineffective assistance of counsel, neglect of a legal matter and failure to communicate. Respondent failed to timely provide an answer. The ODC issued subpoenas compelling his appearance and production of documents at a scheduled deposition. After receiving notice of the subpoena, respondent filed a general response stating he needed additional time to review his file in order to thoroughly address the allegations in more detail. The day before the deposition, respondent faxed his file to the ODC. Respondent appeared at his scheduled deposition and gave a sworn statement in the matter. As to his failure to respond to the ODC's earlier request, respondent cited personal matters which barred his ability to focus on the disciplinary proceeding.

Strange/Williams Matter In 1997, Felicia Strange paid respondent $500 to file a criminal appeal on behalf of her fiancee, Frank Williams. Respondent had represented Mr. Williams at his criminal trial. While respondent timely filed the notice of the appeal, he failed to file the appeal. However, respondent later testified that he filed the notice of the appeal as a purely precautionary measure. After reviewing the matter, respondent concluded there was no merit to the appeal and communicated this fact to Mr. Williams.

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Subsequently, Ms. Strange filed a complaint with the ODC alleging respondent would not communicate with her, failed to file the appeal and failed to provide an accounting and a refund of the unearned fee. According to the ODC, respondent failed to timely respond to the complaint and, as a result, subpoenas were issued compelling his appearance and production of documents at a scheduled deposition. Respondent appeared and gave a sworn statement in the matter.

Cheatwood Matter In late 1994, Roy Cheatwood retained respondent to institute a wrongful termination suit against Mr. Cheatwood's former employer. Respondent later testified that he investigated the matter and concluded there was no basis for a suit. According to respondent, he sent Mr. Cheatwood a letter on December 28, 1994 advising him that the attorney-client relationship was terminated. However, Mr. Cheatwood denied receiving the letter. In any event, no petition was filed and the claim prescribed.

DISCIPLINARY PROCEEDINGS Formal Charges After investigation, the ODC filed formal charges against respondent alleging several violations of the Rules of Professional Conduct. With regard to the Lutke matter, the ODC alleged violations of Rules 8.1(c) (failure to cooperate in ODC investigation); 8.4(a) (violating the professional rules); and 8.4(g) (engaging in conduct prejudicial to the administration of justice). In the Smith matter, the ODC alleged violations of Rules 1.3 (neglect); 1.4 (failure to communicate); 1.16 (failure to protect client interests at termination of representation); 3.2 (failure to expedite litigation); 8.1(c) (failure to cooperate in ODC investigation); 8.4(a) (violating the professional

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rules); and 8.4(g) (engaging in conduct prejudicial to the administration of justice). In the Hariston matter, the ODC alleged violations of Rules 8.1(c) (failure to cooperate in ODC investigation); 8.4(a) (violating the professional rules); and 8.4(g) (engaging in conduct prejudicial to the administration of justice). In the Strange/Williams matter, the ODC alleged violations of Rules 1.3 (neglect); 1.4 (failure to communicate); 1.5 (failure to account for and refund unearned fees); 1.16 (failure to protect client interests at termination of representation); 8.1(c) (failure to cooperate in ODC investigation); 8.4(a) (violating the professional rules); and 8.4(g) (engaging in conduct prejudicial to the administration of justice). Finally, with regard to the Cheatwood matter, the ODC alleged violations of Rules 1.3 (neglect); 1.4 (failure to communicate); 1.5 (failure to account for and refund unearned fee); 1.16 (failure to protect client interests at termination of representation); 8.1(c) (failure to cooperate in ODC investigation); 8.4(a) (violating the professional rules); and 8.4(g) (engaging in conduct prejudicial to the administration of justice). Respondent filed an answer denying any professional misconduct. As a result, the matter was scheduled for formal hearing before the hearing committee.

Hearing Committee Report At the hearing, the ODC presented the testimony of several of the complainants. Respondent testified on his own behalf and his testimony conflicted in large part with the testimony of the complainants. At the conclusion of the formal hearing, the hearing committee filed its recommendation. The hearing committee found there was sufficient evidence to support the failure to cooperate charges arising from the Lutke matter. As to the Smith matter, it found no evidence that respondent neglected Mr. Smith's case or failed to

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expedite his litigation in violation of Rules 1.3 and 3.2. However, it concluded respondent failed to communicate with Mr. Smith in violation of Rule 1.4 insofar as respondent failed to properly and unequivocally communicate to Mr. Smith his appraisal of the suit and his unwillingness to proceed.4 Moreover, the committee concluded respondent failed to cooperate with the ODC in its investigation of Mr. Smith's complaints. With respect to the charges arising from the Hariston matter, Strange/Williams matter and Cheatwood matter, the committee found the ODC did not prove these charges by clear and convincing evidence, and recommended they be dismissed. Specifically, with respect to the failure to cooperate charge forming the basis of the Hariston matter, the committee found respondent's answer to Mr. Hariston's complaint may not have been as substantive or as timely as the ODC may have desired, but noted respondent requested additional time to answer the allegations in more detail. The committee concluded the request should have been considered as a request for an extension of time. As to the Strange/Williams matter, the committee determined respondent properly communicated to Mr. Williams that he was not filing an appeal in the matter. It found no violation of Rule 1.5 for failure to account for and refund an unearned fee, concluding that Ms. Strange paid respondent a fee "under a mistake of fact" since respondent was in fact not handling the appeal. Thus, it declined to find a disciplinary violation, but recommended respondent refund the payment to Ms. Strange. The committee also determined there was insufficient evidence to support the finding respondent failed to cooperate with the ODC since respondent provided a response

Respondent's contract of employment with Mr. Smith provided that, if respondent determined that it was not feasible to prosecute his client's claim, respondent could withdraw from representing Mr. Smith "upon notification of such fact." 6

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to Ms. Strange's complaint, albeit a tardy one, alleging he had no attorney-client relationship with Ms. Strange. Finally, as to the Cheatwood matter, the committee found respondent was credible when he testified he sent Mr. Cheatwood a letter terminating the representation. While the committee questioned whether respondent's failure to send the letter by certified mail in light of the pending prescriptive date was a malpractice matter, it concluded his actions did not constitute an ethical violation. As to respondent's failure to cooperate, the committee concluded respondent's failure to reply to the ODC's request for a document which did not exist (a certified mail receipt from the termination letter) did not materially interfere with its investigation. As a sanction, the committee recommended respondent be suspended for thirty days in the Lutke matter and thirty days in the Smith matter, with the suspensions running concurrently. The ODC filed an objection to each of the committee's findings relating to the dismissed charges.

Disciplinary Board The disciplinary board adopted the committee's findings of fact, noting that the committee's factual findings were based on its evaluation of the witnesses appearing before it and were entitled to great weight. However, the board found that the committee erred in failing to find that respondent's conduct in the Lutke and Smith matters also violated Rule 8.4(a), which provides that it is misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct. In addressing the issue of sanctions, the board reviewed the jurisprudence and determined the proposed sanction recommended by the hearing committee was too

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lenient. Instead, it recommended an eight month suspension, with five months deferred, followed by a six-month period of probation. One board member dissented without assigning reasons. Both respondent and ODC filed an objection to the board's recommendation and, therefore, the matter was docketed for oral argument pursuant to Rule XIX,

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