IN RE: LIONEL BURNS (2024)

Suspension imposed. See per curiam.

JDH

SJC

JTK

WJC

JBM

Supreme Court of Louisiana November 27, 2024

11/27/2024

SUPREME COURT OF LOUISIANA

November 27, 2024

NO. 2024-B-1119

IN RE: LIONEL BURNS, JR.

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Lionel Burns, Jr., an attorney licensed to practice law in Louisiana, but currently ineligible to practice.¹

PRIOR DISCIPLINARY HISTORY:

Before we address the current charges, we find it helpful to review respondent's prior disciplinary. Respondent was admitted to the practice of law in Louisiana in 1998.

In 2006, respondent was admonished by the disciplinary board after being found in contempt of court, twice, in the same case and over the same discovery dispute. The following year, the board again admonished respondent for failing to timely pay a third party.

In 2018, we considered a disciplinary matter in which respondent facilitated the unauthorized practice of law by sending his paralegal to an attorney-only pretrial conference. Respondent also was untruthful as to why he could not attend the pretrial conference himself. For this misconduct, we suspended respondent for one year and ordered him to attend Ethics School. In re: Burns, 17-2153 (La. 5/1/18), 249 So. 3d 811 (“Burns I”). Respondent remained suspended until May 17, 2019, when he was reinstated to the practice of law.

Against this backdrop, we now turn to a consideration of the instant misconduct.

FORMAL CHARGES

Count I

In September 2016, complainants, Kimberly Stewart McDuffie and Mark Crocklen, Sr., retained respondent to represent their son, Mark Crocklen, Jr., in a criminal case in Jefferson Parish. Respondent agreed to represent Mark Jr. through trial for a flat fee of $20,000. Ms. McDuffie paid respondent $10,000 via cashier's check, and Mr. Crocklen, Sr. paid the remaining $10,000 balance in bi-monthly payments of $150.

In May 2018, while the representation was still ongoing, respondent was suspended from the practice of law in Burns I. Respondent failed to notify Mark Jr. of his suspension, as required by Supreme Court Rule XIX, § 26. He also failed to return Mark Jr.’s client file or timely refund the unearned portion of the fee complainants paid. Indeed, respondent accepted 24 separate payments of attorney's fees from Mr. Crocklen, Sr. after he was suspended. Furthermore, respondent failed to withdraw from the representation of Mark Jr. and “appointed” another attorney to handle the criminal case without Mark Jr.’s knowledge or prior consent.

Upon learning of respondent's suspension, complainants attempted to communicate with respondent, to no avail. Complainants then attempted to secure new counsel for their son, but their efforts were unsuccessful due to a pending trial date. In October 2018, Mark Jr. pleaded guilty and was sentenced to serve forty years in prison.

In May 2019, in connection with his reinstatement efforts, respondent filed with this court an affidavit certifying his full compliance with the suspension order; however, respondent knew that he had not complied with the requirements of Rule XIX, § 26, including the requirement to notify his client of his suspension.

In May 2020, complainants filed a complaint against respondent with the ODC. In October 2022, respondent refunded a portion of the fee complainants paid.

The ODC alleges that respondent's conduct in Count I violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.5(f)(5) (payment of fees in advance of services), 1.16(d) (obligations upon termination of the representation), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 5.5(e)(4) (a suspended lawyer shall not receive, disburse or otherwise handle client funds), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary investigation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II

In December 2021, Chadsidy Blackstone paid respondent $3,500 to represent her in a disciplinary action brought against her by her employer. By June 2022, Ms. Blackstone had become dissatisfied with the progress of the case. She terminated respondent and requested that he return the fee she paid. In response, respondent provided Ms. Blackstone with a “detailed bill” purporting to detail over $9,050 worth of legal work performed in the case.² In July 2022, Ms. Blackstone filed a complaint against respondent with the ODC.

In September 2022, the ODC took respondent's sworn statement. During the statement, respondent admitted that when Ms. Blackstone terminated the representation, the disciplinary action he was hired to handle had not yet commenced, and he had not done the legal work he was retained to do. The day after the sworn statement, respondent returned the fee Ms. Blackstone paid.

The ODC alleges that respondent's conduct in Count II violated the following provisions of the Rules of Professional Conduct: Rules 1.16(d), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c).

DISCIPLINARY PROCEEDINGS

In January 2023, the ODC filed formal charges against respondent. In June 2023, the ODC amended the formal charges to add additional allegations of misconduct relating to Count I. In his answer to the formal charges, respondent admitted that he did not notify Mark Jr. of his suspension and that he filed an affidavit with the court incorrectly stating that he had notified his clients of his suspension by certified mail (Count I). Respondent also admitted that he sent Ms. Blackstone a detailed bill “containing an inadvertent calculation error” (Count II). In all other respects, respondent denied that he violated the Rules of Professional Conduct as alleged by the ODC.

Formal Hearing

The hearing committee conducted a formal hearing on November 6, 2023. Both respondent and the ODC introduced documentary evidence. The committee heard testimony from the following witnesses: Deidre Peterson-Jefferson (the attorney who represented Mark Jr. after respondent's suspension); David Wolff (the prosecutor in Mark Jr.’s criminal case); Mark Jr.; and Ms. Blackstone. Respondent testified on his own behalf and on cross-examination by the ODC. He also stipulated to all of the rule violations alleged by the ODC in both Count I and Count II of the formal charges.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee accepted the stipulation of facts and rule violations. The committee also made the following additional factual findings:

1. Respondent's suspension from the practice of law was effective May 16, 2018.

2. Respondent failed to file an affidavit with this court showing compliance with this court's order and rules.

3. Respondent was reinstated effective May 17, 2019.

4. On May 23, 2019, respondent filed a false affidavit with this court certifying “full compliance with the court's suspension order.”

5. On or about September 24, 2016, respondent was hired to provide legal representation through the conclusion of a criminal matter involving Mark Jr.

6. Respondent did not notify opposing counsel in Mark Jr.’s case that he had been suspended. Opposing counsel heard that respondent had been suspended and filed a motion to determine counsel approximately two months after respondent had been suspended.

7. No plea deal for Mark Jr. had been negotiated by the time respondent was suspended.

8. Ms. Diedre Peterson-Jefferson handled the representation of various clients for respondent, including Mark Jr., after respondent was suspended; she was not involved in the cases, or contacted by respondent about the cases, prior to respondent's suspension.

9. On December 2, 2021, Ms. Chadsidy Blackstone entered into a fee agreement with respondent and paid a $3,500 advanced fee.

10. On June 22, 2022, Ms. Blackstone emailed respondent terminating his legal representation and requesting a return of money paid.

11. On June 23, 2022, respondent issued an invoice to Ms. Blackstone in the amount of $9,050 for the period between October 2021 and June 2022. None of the charges listed on this invoice related to work for which respondent had been retained.

12.Mr. Blackstone filed a complaint with the ODC on July 1, 2022, and the advanced fee was returned on or about September 27, 2022.

The committee determined respondent violated duties owed to his clients, the legal system, and the legal profession. Respondent acted knowingly and intentionally, causing actual harm by depriving Mark Jr.’s parents and Ms. Blackstone of funds for a significant period of time. Mark Jr. was also left unrepresented by the attorney he retained. The baseline sanction ranges from suspension to disbarment.

The committee determined that the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, multiple offenses, and substantial experience in the practice of law (admitted 1998). The committee determined the only mitigating factor is respondent's “full and free disclosure to the disciplinary board and his cooperative attitude toward this proceeding.”

After further considering the court's prior jurisprudence addressing similar misconduct, the committee recommended that respondent be suspended from the practice of law for two years.

Respondent filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee's factual findings are not manifestly erroneous and adopted same. In addition, respondent stipulated that he violated the Rules of Professional Conduct as charged in the formal charges.

The board determined respondent violated duties owed to his client, the legal system, and the legal p rofession. Resp ondent acted knowingly and intentionally, causing actual harm. He failed to notify his client, Mark Jr., or his client's p arents, who hired resp ondent to rep resent their son and were continuing to make p ayments to resp ondent, of his suspension. The board noted that there “is no way to know whether [Mark Jr.] could have obtained a better result than the forty -year p lea agreement he accep ted, but the p otential existed that new counsel hired in a timely manner may have achieved a better outcome.” Further, both Mark Jr.’s p arents and Ms. Blackstone were dep rived of their funds for significant p eriods of time due to resp ondent's failure to refund the unearned fees. Based on the ABA's Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction ranges from susp ension to disbarment.

The board determined that the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law. The board determined the sole mitigating factor is full and free disclosure to disciplinary board and a cooperative attitude toward the proceedings.

Turning to the issue of appropriate sanction, the board agreed with the committee that a two-year suspension is reasonable for respondent's misconduct. Respondent's unauthorized practice of law did not involve the active performance of any legal services, and as such, does not warrant disbarment or the most severe suspension. However, respondent also engaged in additional misconduct, and he has a prior disciplinary history.

Based on this reasoning, the board recommended that respondent be suspended from the practice of law for two years. The board also recommended that respondent be assessed with the costs and expenses of this proceeding.

Neither party filed an objection to the disciplinary board's recommendation.³

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So. 3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. SeeIn re: Caulfield, 96-1401 (La. 11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La. 3/11/94), 633 So.2d 150.

Respondent has stipulated that he engaged in professional misconduct when he failed to notify his client that he had been suspended from the practice of law, failed to immediately return an unearned fee and client file after suspension, failed to comply with reinstatement requirements, filed a knowingly false reinstatement affidavit with this court, and collected attorney's fees while suspended from the practice of law. Based upon these stipulations, respondent violated the Rules of Professional Conduct as alleged in the formal charges. Therefore, the sole question presented for our consideration is the appropriate sanction for this misconduct.

In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana StateBar Ass'n v. Reis, 513 So. 2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La. 1984).

Respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession. His conduct caused actual harm. The baseline sanction for this type of misconduct is suspension. Aggravating factors include a prior disciplinary record, a dishonest or selfish motive, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law. The only mitigating factor present is full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

Based upon our review of the record, we cannot say that the imposition of a two-year suspension from the practice of law is inappropriate. Further, imposing the recommended sanction would require respondent to file a formal petition for reinstatement. Accordingly, we will adopt the board's recommendation and suspend respondent from the practice of law for two years.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that Lionel Burns, Jr., Louisiana Bar Roll number 25352, be and he hereby is suspended from the practice of law for two years. Costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

FOOTNOTES

1.   On September 9, 2024, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment.

2.   The bill consists mostly of texts and phone calls between Ms. Blackstone and respondent's paralegal.

3.   Although respondent attempted to file an objection, it was untimely under Supreme Court Rule XIX, § 11(G) and therefore was not considered.

Weimer, C.J., dissents and assigns reasons. Griffin, J., dissents and assigns reasons.