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01/22/2010 "See News Release 005 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA NO. 09-B-1740 IN RE: HARRY J. BOYER, JR.

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM*
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Harry J. Boyer, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Boyer, 09-1735 (La. 7/29/09), 13 So. 3d 1126.

FORMAL CHARGES Count I In April 2005, Thomas Kronenberger retained respondent to represent his brother-in-law, Kenneth Helmstetter, in a criminal matter. On May 4, 2005, Mr. Kronenberger paid respondent $2,500 of a $5,000 flat fee, which payment respondent's contract improperly characterized as non-refundable. On May 13, 2005, respondent was discharged from the representation of Mr. Helmstetter. Respondent improperly attempted to account for the flat fee on an hourly basis even though no hourly fee basis was agreed upon, and the advanced funds were not handled as an advanced hourly fee. Respondent failed to properly account for the earned portion, and failed to refund the unearned portion, of the fee paid by Mr. Kronenberger. Respondent also failed to place the disputed portion of the advanced fee into a trust

*

Weimer, J., recused.

account and failed to suggest a means for prompt resolution of the fee dispute such as mediation or arbitration. The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f) (payment of fees in advance of services), 1.15(e) (when in the course of representation a lawyer is in possession of property in which two or more persons claim interests, the property shall be kept separate until the dispute is resolved), 1.16(d) (obligations upon termination of the representation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II In December 2003, Raynell Rankin retained respondent to represent her in a criminal case. Respondent was paid an advanced flat fee of $500 for the

representation. Respondent appeared in court with Ms. Rankin through June 16, 2005, but thereafter, he abandoned his client and failed to communicate with her. Respondent also failed to account for the advanced fee. The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f), and 1.16(d).

Count III In May 2005, Melissa Meyers and Betty Meyers retained respondent to handle the appeal of Kim Meyers' criminal conviction. Respondent was paid an advanced flat fee of $500 for the representation; however, he did not file an appeal and failed

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to communicate with his client. Respondent also failed to account for the advanced fee, and failed to refund the unearned fee. The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), and 8.4(c).

Count IV In August 2005, respondent enrolled as counsel of record for Judy Ann Marie in a criminal case. Respondent failed to appear in court for the trial of Ms. Marie's case on the following dates: April 7, 2006; May 11, 2006; August 14, 2006; and September 18, 2006. Attachments were issued for respondent's arrest following the May, August, and September court dates, and in September, the court also ordered counsel appointed to represent respondent's client. The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 and 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal).

Count V In June 2006, Clifton Thibodeaux, Jr. retained respondent to represent him in a criminal case. Respondent was paid $1,500 of a $5,000 advanced flat fee for the representation; however, respondent failed to appear in court with Mr. Thibodeaux for his July 19, 2006 arraignment. Respondent also failed to appear at Mr.

Thibodeaux's September 8, 2006 pre-trial conference, and Mr. Thibodeaux had to obtain new counsel who enrolled on October 31, 2006. Respondent failed to account for the advanced fee, and failed to refund the unearned advanced fee.

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The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.5(f), 1.16(d), and 8.4(c).

Count VI In November 2006, respondent was personally served with the complaints filed against him in the Rankin, Meyers, Marie, and Thibodeaux matters, supra. Respondent failed to respond to the complaints. The ODC alleged that respondent's conduct violated Rule 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count VII Respondent represented Deborah Fabre in a personal injury case that settled in May 2007. On May 4, 2007, the Travelers Indemnity Company issued a settlement check in the amount of $13,862.88 made payable to Ms. Fabre and respondent. On May 29, 2007, respondent issued a check to Ms. Fabre in the amount of $10,354.88 for her portion of the settlement proceeds. This check was returned NSF. Ms. Fabre notified respondent that the check had been returned, but he failed to make the check good and failed to promptly remit the funds to his client.1 The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c).

In brief to this court, respondent represents that he has repaid Ms. Fabre $5,000 toward the amount of the NSF check. 4

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Count VIII In February 2007, Catherine Washington retained respondent to represent her son in a criminal matter. Ms. Washington paid respondent an advanced flat fee of $700, and he informed her that if he could not get her son released from jail, he would refund all the money she had paid. Respondent ultimately did not obtain the release of Ms. Washington's son from jail, but he did not refund the unearned fee. The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f), 1.16(d), and 8.4(c).

DISCIPLINARY PROCEEDINGS In June 2008, the ODC filed eight counts of formal charges against respondent, as set forth above. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed

admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX,

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