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01/07/05 "See News Release 001 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA NO. 04-B-0759 IN RE: J. MICHAEL BORDELON

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, J. Michael Bordelon, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS In 1987, Denise Seidman was injured while evacuating an airplane using its emergency slide. Ms. Seidman retained counsel to file suit against the airline in federal court. The case proceeded to trial and the jury rendered a substantial verdict in Ms. Seidman's favor. The district court subsequently denied a motion for new trial filed by the airline on the condition that Ms. Seidman accept a remittitur. Ms. Seidman accepted the remittitur and judgment was entered in accordance therewith. On February 15, 1991, the United States Court of Appeals for the Fifth Circuit remanded the case for a new trial on the issue of damages if Ms. Seidman was unwilling to accept a further reduction of the award.1 Following the appellate court's decision, Ms. Seidman had difficulty contacting her attorney to discuss her case. As a result, in late August of 1991, she consulted with respondent, to whom she was referred by a mutual friend. Over the next three months, respondent met with Ms. Seidman on several occasions to discuss the

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See Seidman v. American Airlines, Inc., 923 F.2d 1134 (5th Cir. 1991).

personal injury case. He investigated the current posture of the case, spoke to Ms. Seidman's attorney, and attempted to enlist other attorneys to re-try the case. Eventually, however, Ms. Seidman's original attorney contacted her, and in November 1991, Ms. Seidman authorized the settlement of the case for $650,000. In midDecember 1991, Ms. Seidman received $250,000 as the net proceeds of her personal injury settlement. At about the same time that Ms. Seidman received the settlement, she and respondent began a consensual sexual relationship, which continued through the fall of 1992. During the relationship, respondent suggested to Ms. Seidman that she could "invest" some of her settlement by loaning him $20,000 for the down payment on a home he and his wife wanted to purchase. Ms. Seidman agreed to do so, and on January 15, 1992, respondent executed an unsecured promissory note in her favor.2 Between 1992 and 1994, respondent made periodic interest payments on the promissory note. He also reduced the principal balance of the note to $14,132 as of October 1994. On October 20, 1994, Ms. Seidman was arrested in New Orleans on drugrelated charges. She immediately contacted respondent, who obtained her release from jail on a bond secured by the home that he shared with his wife. Ms. Seidman then moved into respondent's home for a period of several months. During this time, respondent demanded that Ms. Seidman return the original $20,000 promissory note to him. When Ms. Seidman was unable to locate the note, respondent prepared an affidavit for her signature attesting that the original promissory note had been lost. The November 20, 1994 affidavit also stated that the $20,000 loan had been "paid in full and completely discharged by the makers, and fully satisfied." Ms. Seidman

The note was payable in monthly installments of interest only for a five-year term, with no prepayment penalty as to principal.
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denied that she was told of this provision at the time she signed the affidavit, which she alleged was signed under duress, and she denied that the loan had been fully satisfied by respondent. Ms. Seidman left respondent's home in January 1995. By letter to respondent dated February 1, 1995, Ms. Seidman requested full repayment of the balance of the principal, some $14,200, and accrued interest. Respondent refused Ms. Seidman's demand, stating that the note "has been paid." In November 1995, Ms. Seidman filed a complaint against respondent with the ODC, alleging, among other things, that respondent had refused to repay the loan and that he had coerced her to sign the lost note affidavit. Respondent denied Ms. Seidman's allegations and asserted that the debt had been "extinguished in full, per her Notarized receipt." In 1996, the ODC dismissed the complaint, finding no evidence which proves that an attorney/client relationship was created prior to the execution of the promissory note. The ODC also found no evidence to suggest that Ms. Seidman signed the lost note affidavit under coercion or duress or that the debt had not been paid in full. Upon Ms. Seidman's request for review of the dismissal, the disciplinary board remanded the matter to the ODC for further investigation. In particular, the board directed the ODC to determine whether an attorney/client relationship existed between respondent and Ms. Seidman, and to reconsider the issue of whether respondent fully repaid the promissory note. In response to the board's order of remand, respondent denied that he had ever represented Ms. Seidman in a legal capacity. With respect to the loan, respondent stated that he paid off Ms. Seidman "in cash," and that "the loan was repaid IN FULL." In a sworn statement taken in March 1998, respondent stated affirmatively that the loan "was completely paid off by mid `94."

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DISCIPLINARY PROCEEDINGS Formal Charges Following additional investigative efforts after remand, the ODC filed two counts of formal charges against respondent on July 29, 1998. In Count I, the ODC alleged that respondent breached his duty of loyalty to his client, in violation of Rule 1.7(b) of the Rules of Professional Conduct (a lawyer shall not represent a client if the representation may be materially limited by the lawyer's own interests), and engaged in a prohibited business transaction with a client, in violation of Rule 1.8(a). In Count II, the ODC alleged that respondent provided false and misleading information in the course of the disciplinary investigation, in violation of Rules 8.1(a) (knowingly making a false statement of material fact in connection with a disciplinary matter), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Specifically, the ODC alleged that respondent falsely denied his sexual relationship with Ms. Seidman, falsely denied any indebtedness owed to her, and "otherwise provid[ed] false testimony designed to mislead the Office of Disciplinary Counsel." On September 21, 1998, respondent answered the formal charges, denying that he ever had an attorney/client relationship with Ms. Seidman. Respondent refused to admit or deny that he had a sexual affair with Ms. Seidman, on the ground that issue was "immaterial, as there was never an attorney-client relationship." Respondent admitted that he borrowed money from Ms. Seidman, but stated that the terms "were of an arms length nature," and that in the absence of an attorney/client relationship, there was no need for him to have advised Ms. Seidman to seek other counsel or to waive a conflict in connection with the transaction. Concerning the repayment of the loan, respondent asserted "that the note was paid, remitted, and discharged." Finally,
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respondent denied that he provided false or misleading information to the ODC during the disciplinary process.

First Formal Hearing The matter proceeded to a formal hearing on the merits on November 8, 1999. Neither respondent nor his counsel of record appeared on that day, although the record reflected that the disciplinary board administrator had provided respondent's counsel with notice of the hearing. The hearing committee chair also attempted to contact respondent's counsel by telephone, but was unable to reach him. The hearing committee then proceeded with the hearing. In support of the formal charges, the ODC presented documentary evidence and the testimony of several witnesses, including Ms. Seidman, who denied that she had ever remitted any portion of respondent's debt represented by the promissory note and asserted that the note remained unpaid. Respondent subsequently learned that the hearing had taken place in his absence, and he asked for an opportunity to present testimony in his defense. The ODC did not oppose respondent's request. Accordingly, the hearing committee chair ordered that a new hearing be conducted.

Consent Discipline Prior to the second hearing, respondent submitted a petition for consent discipline which, among other provisions, called for him to repay Ms. Seidman the sum of $14,200. The ODC concurred in the petition, and the disciplinary board recommended that the proposed discipline be accepted. This court ultimately rejected the petition for consent discipline and remanded the matter for further proceedings

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before the hearing committee. In re: Bordelon, 01-1202 (La. 5/23/01), 788 So. 2d 423.

Second Formal Hearing The second hearing on the merits was scheduled for April 11, 2002. Respondent appeared at that time, along with his counsel. Respondent testified on his own behalf and called his wife, attorney Kathryn Hill, to testify before the committee. Though the ODC had secured Ms. Seidman's presence at the second hearing, in order that she would be available to be cross-examined by respondent, respondent chose not to call her to testify. In his testimony concerning the debt owed to Ms. Seidman, respondent admitted that "the written evidence" reflected that as of October 1994, the principal balance on the note was $14,132. Nevertheless, respondent asserted that the actual balance due Ms. Seidman at that time was "somewhere in the neighborhood of ten to $12,000." Respondent conceded that he had no receipts or other documentation to establish that he had repaid the principal balance down to that amount, but he testified that regardless of that fact, Ms. Seidman told him both before and after he bailed her out of jail that the balance due on the note would be forgiven: A. . . . [S]he said you don't have to pay me, you don't have to pay me at all, I said, well, Denise, thank you very much, but I need you to get the note and mark it paid or cancelled and return it to me and my wife. What was the reason for her willingness to forgive the debt? I don't know. I expect because of friendship and our past relationship, but she did it unilaterally. She said, you don't have to pay me back, forget about it completely.

Q.

A.

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Hearing Committee Recommendation Considering the evidence presented at the formal hearings, the hearing committee made a factual finding that no attorney/client relationship ever existed between respondent and Ms. Seidman. The committee found that respondent only agreed to assist Ms. Seidman in her efforts to find a new attorney to re-try her personal injury case. Respondent contacted an attorney and performed a minimal investigation into the matter by obtaining a copy of the district court's ruling. There was no discussion of and no agreement to a fee arrangement between respondent and Ms. Seidman. As it turned out, respondent did not actually refer Ms. Seidman to another attorney because she decided to allow her existing attorney to settle the personal injury case. Under these facts, the committee concluded that Ms. Seidman did not have a reasonable belief that respondent was in fact her attorney on the personal injury case. Accordingly, the committee recommended that the charges forming the basis of Count I, which are predicated on the existence of an attorney/client relationship between respondent and Ms. Seidman, be dismissed. With respect to Count II, concerning respondent's conduct during the disciplinary investigation, the committee found there is no clear and convincing evidence that respondent provided false or misleading information to the ODC concerning his relationship with Ms. Seidman. Respondent was not asked to characterize the relationship until the April 2002 hearing, at which time he neither admitted nor denied a sexual relationship. However, the committee found that respondent did make false statements of material fact concerning payment of the promissory note to Ms. Seidman. The committee noted that at various times in these proceedings, respondent has claimed that the debt to Ms. Seidman was paid in full, but on yet other occasions he claimed that a portion of the debt was forgiven by Ms. Seidman. The committee found these statements are inconsistent and irreconcilable
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and were obviously intended to convey to the ODC that respondent had fully repaid the entire debt to Ms. Seidman, when that was not in fact the case. Based on these factual findings, the committee found that respondent violated Rule 8.1(a) of the Rules of Professional Conduct. Turning to the issue of an appropriate sanction for respondent's misrepresentations to the ODC, the committee recognized that respondent has no prior disciplinary record in his 24-year legal career. Accordingly, the committee

recommended that he be suspended from the practice of law for sixty days. Both respondent and the ODC filed objections to the hearing committee's report and recommendation.

Disciplinary Board Recommendation After reviewing the record of this matter, the disciplinary board agreed with the hearing committee that the ODC failed to prove by clear and convincing evidence the existence of an attorney/client relationship between respondent and Ms. Seidman. The board noted that respondent has consistently maintained that he met with Ms. Seidman only to help her find another attorney to handle her personal injury case. The board adopted the hearing committee's factual findings and made additional factual findings relating to respondent's conduct. Based on these factual findings, the board concluded that respondent violated the Rules of Professional Conduct as follows: Rules 1.7 and 1.8

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