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04/29/2005 "See News Release 030 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA NO. 05-B-0522 IN RE: A. GILL DYER

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, A. Gill Dyer, a disbarred attorney.1

UNDERLYING FACTS AND PROCEDURAL HISTORY Between 2000 and 2003, the ODC filed five sets of formal charges against respondent. The charges were ultimately consolidated by the hearing committee on November 4, 2003. On March 3, 2005, the disciplinary board filed in this court a single recommendation of discipline encompassing all matters involving respondent.

00-DB-0262 On October 19, 1999, respondent was disbarred in Dyer I, effective as of February 11, 1998, the date of his interim suspension. Nevertheless, in March 1999, respondent accepted the representation of Diane M. DeChant in a personal injury

Respondent was disbarred in 1999 for deliberately overcharging his client by inflating legitimate expenses and charging for fictitious expenses, and for forging the endorsements on a $982 medical payments check and converting the funds to his own use. In re: Dyer, 99-1652 (La. 10/19/99), 750 So. 2d 942 ("Dyer I"). The formal charges in 00-DB-026 originally contained two counts, the second of which related to sanctions imposed against respondent in breast implant litigation pending in federal court. The ODC subsequently dismissed the second count, and accordingly, it is not discussed in further detail herein.
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matter. Respondent entered into a contingent fee agreement with Ms. DeChant and sent authorization forms to her so that he could obtain her medical records. The ODC alleged that respondent's conduct violated Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 5.5(a) (engaging in the unauthorized practice of law), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

01-DB-061 Respondent filed a claim on behalf of Karen Burnthorne in a pending breast implant class action lawsuit. In February 1997, respondent received a $379.90 check from the settlement fund on behalf of Ms. Burnthorne. Respondent returned the check to the claims administrator, advised that the amount was incorrect, and requested a new check in the correct amount. None of this information was communicated to Ms. Burnthorne. In March 1998, respondent received a replacement check in the amount of $750, made payable to "Karen Burnthorne & A Gill Dyer." Ms. Burnthorne was never contacted regarding this settlement and did not endorse the check. Nevertheless, the check was negotiated and deposited into respondent's bank account. Respondent did not disburse the funds to Ms. Burnthorne, nor did he provide her with an accounting. The ODC alleged that respondent's conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(b) (failure to promptly account for and deliver funds

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or property owed to a client or third party), and 8.4(a) of the Rules of Professional Conduct.

02-DB-043 In connection with a bankruptcy matter involving respondent's client, Donna Kay Penton, the United States Bankruptcy Court for the Middle District of Louisiana issued an order to show cause which directed respondent to submit a response in the form of a sworn affidavit. Respondent filed an affidavit that was purportedly notarized, but he was subsequently unable to provide the court with the notary's name. In sworn testimony in open court on February 14, 2000, respondent explained that he had the affidavit notarized by an unknown person he found on the sidewalk outside an office building in Covington. Respondent admitted that he did not ask for or see any identification or other evidence that the person was in fact a duly commissioned notary. The court made a factual finding that respondent's testimony regarding the purported notary signature was false and that the affidavit was not actually notarized. After a hearing in May 2000, respondent was found in civil contempt of court for having failed to comply with a directive of the bankruptcy court to file a verified response to the previously issued order to show cause. The ODC alleged that respondent's conduct violated Rules 3.1 (meritorious claims and contentions), 3.2 (failure to make reasonable efforts to expedite litigation), 3.3 (candor toward the tribunal), 3.4, 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

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03-DB-036 Count I Respondent represented Sandra K. Mickenhime in a pending breast implant class action lawsuit. In June 1999, respondent received a $12,000 check in settlement of Ms. Mickenhime's claims against 3M Corporation, payable to respondent, his cocounsel, and Ms. Mickenhime. Respondent endorsed the check and deposited it into his bank account in mid-June 1999. Although he met with Ms. Mickenhime several times thereafter, he never advised her that he had received settlement funds on her behalf, nor did he disburse the funds to her. Even after respondent's interim suspension and disbarment in Dyer I, he held himself out to Ms. Mickenhime as eligible to practice law, and led her to believe that he was continuing to pursue her claim. Furthermore, respondent failed to cooperate with the ODC in its investigation of Ms. Mickenhime's complaint. The ODC alleged that respondent's conduct violated Rules 1.3, 1.4, 1.15(b), 1.16(a)(d) (termination of the representation), 5.5(a), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count II In July 2000, after his disbarment in Dyer I, respondent had several telephone conversations with Jim Keller concerning his pending personal injury case. Respondent advised Mr. Keller that he would obtain his file from his attorney, review the matter, and refer the case to a qualified attorney. By letter dated July 19, 2000, respondent forwarded a contingent fee agreement and medical releases to Mr. Keller for execution, and a letter terminating Mr. Keller's attorney/client relationship with

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Larry Boudreaux. Upon advice of disciplinary counsel, respondent subsequently informed Mr. Keller that he could not handle the case and returned his file to him. The ODC alleged that respondent's conduct violated Rules 5.5(a), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

03-DB-071 Sandra Mickenhime, respondent's client subject of Count I in docket number 03-DB-036, reported respondent's conduct to the East Baton Rouge Parish District Attorney's Office. On September 11, 2003, respondent pleaded guilty to felony theft, a violation of La. R.S. 14:67, stemming from the Mickenhime matter. State v. Albert Gill Dyer, No. 2-03-332 on the docket of the 19th Judicial District Court. Under the provisions of La. Code Crim. P. art. 893, the court deferred the imposition of sentence for a period of three years and placed respondent on active, supervised probation for that period. Respondent was also ordered to pay $12,000 in restitution to Ms. Mickenhime.3 Respondent failed to report his conviction to the ODC. The ODC alleged that respondent's conduct violated Rules 8.3(a) (reporting professional misconduct), 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS Respondent was served with all five sets of formal charges. He responded to each and denied any misconduct. Hearing Committee #2 considered the first set of

According to the court minutes, respondent paid $6,000 at sentencing and was ordered to pay $1,000 a month thereafter until Ms. Mickenhime was repaid in full. Interestingly, Ms. Mickenhime testified at the formal hearing that respondent's bank would not honor the $6,000 check when she tried to cash it because there were not sufficient funds in respondent's account. The following day, at the insistence of the district attorney's office, respondent delivered a $6,000 cashier's check to Ms. Mickenhime. 5

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formal charges, docket number 00-DB-026, at a hearing conducted on September 21, 2000. Hearing Committee #28 considered the remaining charges at a hearing conducted on September 29, 2003.

Hearing Committee Recommendations 00-DB-026 Considering the evidence and testimony presented at the hearing, Hearing Committee #2 made a factual finding that after respondent was placed on interim suspension, he executed a contingent fee agreement with Ms. DeChant and had her execute medical release forms for the purpose of obtaining medical records. The committee noted that it may be proper for a non-lawyer to conduct these activities under the supervision of a lawyer; however, respondent admitted that he was not being supervised by any lawyer at the time these activities were performed. Based on these factual findings, the committee concluded that respondent violated Rules 3.4(c), 5.5(a), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.4 The committee recommended that respondent be disbarred for this conduct.

01-DB-061; 02-DB-043; 03-DB-036; 03-DB-071 Considering the evidence and testimony presented at the hearing, Hearing Committee #28 made the following findings: 01-DB-061

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