IN RE: Alphonse M. THOMPSON (2020)

ATTORNEY DISCIPLINARY PROCEEDING

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Alphonse M. Thompson, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

On August 30, 2016, respondent filed a petition for damages on behalf of his client, Deandra Pittman, in First City Court for the City of New Orleans. Respondent thereafter took no further action in the case. Nevertheless, he provided Ms. Pittman with a copy of a motion and order setting the matter for trial. The order indicated a trial date of August 30, 2017 and was purportedly signed by Judge Angelique Reed on April 17, 2017. The motion and order did not have a file date or any other indication that the clerk of court's office had received and processed same.

On June 26, 2017, Ms. Pittman spoke to Judge Reed's office and was informed that no trial date was set. On June 29, 2017, Ms. Pittman faxed a copy of the motion and order to Judge Reed's office. On July 10, 2017, the ODC received a disciplinary complaint from Judge Reed. In her complaint, Judge Reed denied signing the order and asserted that the pleading was never filed with the clerk's office.

In response to Judge Reed's complaint, respondent admitted neglecting Ms. Pittman's case. He also admitted that, when Ms. Pittman demanded to know when her case would go to trial, he misled her into believing the trial date was imminent. Respondent then indicated that, when Ms. Pittman demanded to see a copy of the order setting the case for trial, he falsified the motion and order. Finally, he expressed remorse for this conduct.

On November 14, 2017, respondent provided a sworn statement to the ODC. During his statement, respondent again admitted to preparing the fraudulent motion and order. He also admitted to forging Judge Reed's signature on the order and acknowledged that, at that time, he had not yet served the defendant with the petition.

DISCIPLINARY PROCEEDINGS

In May 2018, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.2 (failure to make reasonable efforts to expedite litigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer),¹ 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).

In his answer, respondent admitted to the misconduct as set forth in the formal charges. He also identified several mitigating circumstances with respect to both his personal life and professional life.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee summarized the testimony and made factual findings as follows:

Judge Reed testified that Ms. Pittman was inquiring about the trial date for her case. The clerk's office investigation disclosed that there was no order setting her case for trial. Ms. Pittman produced a purported order that was allegedly signed by Judge Reed, who testified that the signature was not hers. She concluded that the purported pleading containing the fraudulent order had been forged by respondent. Therefore, she notified the ODC and submitted a formal complaint against respondent.

Ms. Pittman testified that, after several efforts to determine the status of her case by contacting respondent, she received from him a document purportedly setting the case for trial and signed by Judge Reed. After she contacted Judge Reed's office and learned that the case was not set for trial, she contacted respondent, who admitted that her case was not, in fact, set for trial and that he had signed Judge Reed's name to an order that he prepared.

Respondent admitted he had created a false motion and order purporting to set the case for trial and forged Judge Reed's signature. He testified that, at the time, he was under significant professional and personal stress due to being named as a defendant in a multi-million dollar damage suit, losing his secretary, and also having attorneys he practiced with leave the office. He further testified that he was responsible for caring for his elderly parents. During the course of his testimony, respondent showed convincing remorse and apologized to Judge Reed and Ms. Pittman. The evidence also showed that Ms. Pittman has continued to employ respondent as her attorney in the lawsuit at issue here as well as another lawsuit, and she did not state that she sustained damages as a result of the incident.

Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as charged, with the exception of Rule 8.4(b). With respect to Rule 8.4(b), the committee concluded that respondent's conduct did not rise to the level of a criminal act because the forgery of Judge Reed's signature was not done with the intent to gain a pecuniary benefit.

The committee determined respondent violated duties owed to the legal system and the legal profession. He acted intentionally but caused no actual harm. Based on the ABA's Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

In aggravation, the committee found only a prior disciplinary record.² In mitigation, the committee found personal or emotional problems and remorse. In further mitigation, the committee noted that respondent apologized to Judge Reed and Ms. Pittman and that Ms. Pittman has continued to employ respondent as her attorney.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for one year, with all but one month deferred. The committee also recommended that respondent be assessed with the costs and expenses of this proceeding.

The ODC filed an objection to the committee's report, arguing that a greater actual period of suspension is warranted and that respondent should be required to attend the Louisiana State Bar Association's Ethics School.

Disciplinary Board Recommendation

After review, the disciplinary board adopted the hearing committee's factual findings. Based on those facts, the board determined that the evidence supports the committee's conclusions as to the violations of the Rules of Professional Conduct.

The board explained that, by the time respondent provided Ms. Pittman with the fabricated motion and order, he had not been acting in accordance with her wish to go to trial or maintaining adequate communication with her, in violation of Rules 1.3, 1.4, and 3.2. In fabricating the motion and order, respondent engaged in conduct involving dishonesty, deceit, or misrepresentation, in violation of Rule 8.4(c), and in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d). The board further explained that, in violating the above rules, respondent also violated Rule 8.4(a). Finally, the board agreed with the committee that respondent did not violate Rule 8.4(b) because he did not fabricate the trial court's order with the intent to injure or prejudice the rights of his client. Rather, the board found that respondent took the action he did to pacify his client while he put her case back on track.

The board determined that respondent violated duties owed to his client and the legal profession. His neglect and failure to communicate with his client was negligent or knowing, but his fabrication of the motion and order was intentional. Nevertheless, respondent's misconduct caused no actual harm with the possible exception of the inconvenience to the court in having to field the calls from Ms. Pittman. After considering the ABA's Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found a prior disciplinary record, multiple offenses, and substantial experience in the practice of law (admitted 1985). In mitigation, the board found personal or emotional problems, timely good faith effort to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year, with all but thirty days deferred, subject to the condition that any misconduct during the period of the deferred suspension may be grounds for making the deferred suspension executory or imposing additional discipline, as appropriate. The board also recommended that respondent be assessed with the costs and expenses of this proceeding.

Although neither respondent nor the ODC filed an objection to the board's recommendation, on January 23, 2020, we ordered briefing addressing the issue of an appropriate sanction. Both parties filed briefs in response to the court's order.

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. See In 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.

The underlying facts of this matter are undisputed. Respondent admits that he neglected his client's legal matter. He also admits that, when the client demanded to know when her case would go to trial, he misled her into believing the trial date was imminent. Finally, he admits that when his client demanded to see a copy of the order setting the case for trial, he created a fraudulent motion and order purporting to set the case for trial and forged the trial judge's signature on the order. In light of these admissions, respondent has violated the Rules of Professional Conduct as found by the hearing committee and the disciplinary board.³

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. 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 State Bar 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 violated duties owed to his client and the legal profession. His neglect and failure to communicate with his client was negligent or knowing, but his fabrication of the motion and order was intentional. Nevertheless, respondent's misconduct caused no actual harm. The applicable baseline sanction is suspension. We agree that the aggravating and mitigating factors found by the board are supported by the record.

An analysis of the appropriate measure of discipline in this matter is guided by our decision in In re: Ellis, 98-0078 (La. 5/1/98), 710 So. 2d 794, which presents very similar factual circumstances. Ellis involved an attorney who represented a client in civil litigation. During the representation, the attorney was diagnosed with cancer and underwent chemotherapy but did not inform his client of his medical problems. When the client became dissatisfied with the delay in the litigation, the attorney prepared a falsified judgment in his client's favor that purportedly was signed by the judge presiding over the case. Later, the attorney informed the client that the defendants had appealed the “judgment.” When the client again became impatient about the delay in the litigation, the attorney prepared a second falsified order, purportedly from the court of appeal, showing that the earlier “judgment” had been affirmed. We ultimately found that the attorney had engaged in a serious breach of the ethical rules which called for a sanction of disbarment, or in the alternative, a long period of suspension. However, we noted that there was no serious client harm, and the mitigating circumstances, namely the attorney's medical condition, were substantive. Accordingly, we suspended the attorney for three years, with all but one year and one day deferred.

The facts of Ellis and the instant case are nearly identical, including with respect to mitigating factors. However, it is significant that the attorney in Ellis falsified two pleadings, while respondent falsified only one. In light of this distinction, we agree that a lesser period of actual suspension is warranted in this matter.

Based on this reasoning, we will impose a three-year suspension, with all but six months deferred, followed by a two-year period of unsupervised probation during which respondent shall be required to attend Ethics School.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Alphonse M. Thompson, Jr., Louisiana Bar Roll number 17169, be and he hereby is suspended from the practice of law for a period of three years. It is further ordered that all but six months of this suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for a period of two years. As a condition of probation, respondent is ordered to attend and successfully complete the Louisiana State Bar Association's Ethics School. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All 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.   The ODC alleged that respondent's conduct constituted forgery, a violation of La. R.S. 14:72. That statute provides that it is “unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficacy.” The definition of “forge” in the statute includes altering, making, completing, executing, or authenticating any writing so that it purports to be the act of another who did not authorize that act.

2.   In 2014, we accepted a joint petition for consent discipline and publicly reprimanded respondent for failing to properly supervise a non-lawyer assistant and mishandling his client trust account. In re: Thompson, 14-0210 (La. 2/26/14), 134 So. 3d 579.

3.   Specifically with regard to the allegation that respondent committed a criminal act (forgery) in violation of Rule 8.4(b), both the committee and the board found this violation was not proven by clear and convincing evidence, reasoning that respondent's actions were not motivated by an intent to defraud, which is an essential element of the crime of forgery. Based on the record, we cannot say this determination was clearly erroneous.

PER CURIAM

GENOVESE, J., dissents and would require at least a one-year actual suspension.