IN RE: TARA ELWELL (2024)

CRICHTON, J., concurs in part, dissents in part and assigns reasons:

A majority of this Court accepted respondent's previous Joint Petition for Consent Discipline on April 20, 2022, a ruling from which I dissented. In my view, the sanction imposed was far too lenient in light of the serious and troubling misconduct by respondent:

Respondent was tasked with a relatively uncomplicated and singular client request involving appointment of a successor trustee for a special needs trust for a client's grandson. This appears to have been an uncontested maneuver, one with which a bank, as original designated trustee, ultimately agreed. Despite the rather innocuous nature of this task, respondent charged the client grandmother a fee of over $100,000.00, which was to be paid out of the special needs trust. Not only is this fee outrageously unreasonable and unconscionable, respondent was unable to provide any contemporaneous billing records to support this fee.

In re: Tara Elwell, 22-390 (La. 4/20/22), 336 So. 3d 450 (“Elwell I”)

(Crichton, J., dissenting).

On February 7, 2023, the Louisiana State Bar Association Fee Dispute Arbitration Program inexplicably declined to accept the matter. Instead of notifying the Office of Disciplinary Counsel (“ODC”) and arranging for appointment of an arbitrator, respondent took no action whatsoever. There was no notice to ODC or this Court. Respondent intentionally chose silence, apparently with the hope that the probationary term of Elwell I would expire. She thereby accepted the unjust enrichment at the expense of a special needs trust, notwithstanding her previous stipulation of charging an excessive fee to the trust, all in direct violation of Rule 1.5 of the Rules of Professional Conduct. Furthermore, I find absurd respondent's objection to ODC's proposal as “onerous.” Not only does this constitute obstructionist behavior and recalcitrance in the face of any attempt to achieve justice for the victims in this matter, it implicitly questions the authority of this Court in disciplinary matters.¹

Thus, in light of my previous dissent in Elwell I, I concur in part in the Court's per curiam to the extent that respondent is ordered to now do what the majority ordered almost two years ago. However, I dissent from the per curiam as to the overly generous time frame in which respondent has been granted to perform the disputed fee arbitration. Rather than one year, the arbitration should be completed within 90 to 120 days of this ruling.

FOOTNOTES

1.   Unquestionably, La. Const. art. V, § 5(B) grants this court exclusive original jurisdiction over attorney disciplinary proceedings. See Succession of Wallace, 574 So.2d 348, 350 (La. 1991) (“[t]his court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship”).