STEPHENS, EDDIE L.
99-DB-070 & 00-DB-016 (02/11/2004) Suspension

LOUISIANA ATTORNEY DISCIPLINARY BOARD

IN RE EDDIE L. STEPHENS

NUMBERS 99-DB-070 C/W 00-DB-061

RECOMMENDATION TO THE LOUISIANA SUPREME COURT

This is a disciplinary proceeding based upon formal charges filed by the Office of Disciplinary Counsel (herein "ODC") against Eddie L. Stephens[1] (herein "Respondent") of Baton Rouge, Louisiana.  This matter came before the Board on three counts of misconduct involving lack of diligence, failure to return an unearned fee, failure to properly terminate client representation, unauthorized practice of law, failure to cooperate with a disciplinary investigation and flight from a police officer.  The client misconduct occurred during the same time as the misconduct that resulted in his disbarment.  The Board recommends that Respondent be adjudged to have committed additional Rule violations arising from this misconduct and that these violations be added to his record in the event that he should apply for readmission.  Respondent's flight from a police officer occurred after the misconduct for which he is presently disbarred.  For this misconduct, the Board recommends Respondent be suspended for one year to commence after he is readmitted to the bar should he be permitted to do so.

PROCEDURAL HISTORY

99-DB-070:

On July 20, 1999, ODC filed formal charges against Respondent.  The formal charges alleged Respondent engaged in the unauthorized practice of law, failed to refund an unearned fee, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation and failed to cooperate with a disciplinary investigation.  The Respondent was personally served the 99-DB-070 formal charges on November 18, 1999.  He failed to file an answer to the formal charges.  On March 9, 2000, the factual allegations contained in the formal charges were deemed admitted and proven by clear and convincing evidence by Hearing Committee #14 (herein "Committee #14").  Respondent, who was given twenty days, did not move to recall the order.

On May 10, 2000, ODC filed its deemed admitted submission on sanctions and recommended permanent disbarment or disbarment to run consecutively to the disbarment Respondent was presently under.  On November 14, 2000, Committee #14 recommended Respondent be disbarred with the disbarment to run consecutively with the 1998 disbarment.  The matter was scheduled for Board argument in December 2000, but ODC moved to continue the case without date due to forthcoming additional formal charges.

00-DB-061:

On May 17, 2000, ODC filed formal charges against Respondent based upon his criminal conviction for flight from an officer, driving under a suspended license and failing to display a license plate.  Respondent failed to answer the charges.  On March 26, 2001, the factual allegations contained in the formal charges were deemed admitted and proven by clear and convincing evidence by Hearing Committee #26 (herein "Committee #26").  Respondent, who was given twenty days, did not move to recall the order.

On April 2, 2001, ODC filed its deemed admitted submission on sanctions and recommended permanent disbarment or, in the alternative, disbarment to run consecutively with his current disbarment.  On July 19, 2002, Committee #26 recommended Respondent be permanently disbarred or, alternatively, be disbarred again to run consecutively with the 1998 disbarment.

Consolidation of 99-DB-070 and 00-DB-061:

On August 12, 2002, case numbers 99-DB-070 and 00-DB061were consolidated.  On September 30, 2002, ODC concurred in both Committees' recommendations.  Both cases were scheduled for Board argument on October 24, 2002.  On October 23, 2002, the Board ordered case number 99-DB-070 remanded to Committee #14.  ODC's attachments to its deemed admitted submissions were absent from the record.  The Board ordered ODC to supplement its deemed admitted submission on sanctions with its attachments and serve a copy of the attachments upon Respondent.  The Board gave Respondent ten days from receipt of the documents to file a response with the Board.  Committee #14 was ordered to review the attachments and issue a supplemental report to the Board.

ODC filed the attachments on October 24, 2002.  On July 1, 2003, Committee #14 filed its supplemental report without change from its initial report.  Respondent has not filed a response to either Committee report.

A Panel of the Disciplinary Board heard case numbers 99-DB-070 and 00-DB-061 on August 28, 2003.

FORMAL CHARGES

99-DB-070:[2]

COUNT I

Complainant, Johnson A. Olaremi, hired respondent to represent him in a criminal matter and paid respondent $2,500.00 on October 16, 1996, at which time respondent was suspended from practicing law.  Respondent failed to appear at complainant's scheduled court appearances in May and July, 1997. Subsequently, complainant was appointed a public defender.  Respondent did nothing to earn the $2,500.00 paid to him by complainant.  Respondent was well aware that he was suspended from the practice of law and could not legally accept money for legal services.

COUNT II

In connection with the complaint of Johnson Olaremi, respondent failed, refused and neglected to cooperate with the Office of Disciplinary Counsel.  Respondent failed, refused and neglected to submit a response to Disciplinary Counsel regarding the matter concerning Johnson Olaremi.

The respondent's conduct as herein above outlined represents lack of competence in violation of Rule 1.1; lack of diligence, in violation of Rule 1.3; unearned fee in violation of Rule 1.5; failure to properly terminate representation in violation of Rule 1.16(d); engaging in the unauthorized practice of law in violation of Rule 5.5(a); engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c); and failure to cooperate with the Office of Disciplinary Counsel in violation of Rule 8.4(g) and Rule XIX, Section 9(c).

00-DB-061:[3]

COUNT I

Respondent appeared in court for criminal charges pending against him in State of Louisiana versus Eddie Stephens, Number 10-99-442, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana, Criminal Section V on January 26, 2000. Respondent entered a no contest plea to the criminal offense of flight from an officer and pled guilty to driving under suspension and failure to display a license plate.  Respondent was operating a motor vehicle without properly displaying a license plate.  When police officers attempted to stop Respondent, he increased his speed in excess of 30 mph over the posted speed limit and ran a stop sign prior to stopping the vehicle.  Respondent was operating the vehicle under a suspended driver's license.  A copy of the complaint was sent certified mail to Respondent at his primary address registered with the LSBA as well as his last known address.  The return receipt on the letter addressed to the primary address was returned "undeliverable".  The return receipt on the letter addressed to Respondent's last known address was returned "unclaimed". Respondent has not responded to the complaint.

Respondent's conduct in this matter represents a violation of Rule 8.4(a), violate or attempt to violate the Rules of Professional Conduct; Rule 8.4(b), commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness, fitness as a lawyer in other respects and Rule 8.4(d), conduct that is prejudicial to the administration of justice.

THE HEARING COMMITTEES' REPORTS

99-DB-070:

Committee #14 determined, based upon the deemed admitted rule, that ODC had proven the allegations of the formal charges by clear and convincing evidence and that Rules 1.1, 1.3, 1.5, 1.16(d), 5.5(a), 8.4(c) and 8.4(g) of the Rules of Professional Conduct had been violated.[4]

The Committee found that Respondent knowingly and intentionally violated duties owed to his client, the profession and the public.  Several aggravating factors were recognized:  prior disciplinary offenses;[5] dishonest or selfish motive; a pattern of misconduct; multiple offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; refusal to acknowledge wrongful nature of conduct; vulnerability of the victims; substantial experience in the practice of law (admitted in 1984) and indifference to making restitution.  No mitigating factors were recognized.

Committee #14 relied upon the ABA Standards for Imposing Lawyer Sanctions (herein "Standard") 8.1[6] for Respondent's similar misconduct of failing to return unearned fees and engaging in the unauthorized practice of law which resulted in his disbarment in 1998.  Committee #14 did not cite case law relative to the substantive charges.  It did rely upon In re Welcker, 97-2004 (La. 10/3/97); 701 So.2d 186, and In re Williams, 99-1829 (La. 10/1/99); 744 So.2d 621, for the proposition of consecutive disbarments.  The Committee recommended that Respondent be disbarred for his unauthorized practice of law, failure to return an unearned fee in the Olaremi matter and failure to cooperate with a disciplinary investigation with the disbarment to begin upon the conclusion of the 1998 disbarment.

00-DB-061:

Committee #26 found the facts alleged in the formal charges were deemed admitted and proven by clear and convincing evidence.  Respondent was found to have violated Rules 8.4(a), (b) and (d).  Committee #26 found Respondent acted intentionally, knowingly and negligently in violating duties owed to the public, the legal system and as a professional.  He caused or potentially caused injury to the public's perception of lawyers by fleeing from a police officer while driving at a high rate of speed and running a stop sign.  Aggravating factors were recognized:  prior discipline; dishonest or selfish motive, pattern of misconduct; multiple offenses and substantial experience in the practice of law.  No mitigating factors were identified.  Committee #26 cited neither substantive case law nor ABA Standards.

The Committee recommended Respondent be permanently disbarred based upon Rule XIX, Appendix "E", Guidelines 1, 2, 8 or 9[7] or, alternatively, he be disbarred with the disbarment to commence upon the end of the 1998 disbarment.

ANALYSIS

I. THE STANDARD OF REVIEW

The powers and duties of the Disciplinary Board are defined in Section 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement.  Subsection (G)(2)(a) states that the Board is "to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges . . . and prepare and forward to the court its own findings, if any, and recommendations."

In as much as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of "manifest error".  Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Rosell v. Esco, 549 So.2d 840 (La. 1989).

II.  THE MANIFEST ERROR INQUIRY

Upon a respondent's failure to answer formal charges, "the factual allegations contained within the formal charges shall be deemed admitted and proven by clear and convincing evidence."  Rule XIX, Section 11(E)(3).  Committees #14 and #26 entered orders declaring the factual allegations deemed admitted and proven by clear and convincing evidence.

III. DE NOVO REVIEW OF THE APPLICATION OF THE RULES OF PROFESSIONAL CONDUCT

After reviewing the record in this matter, the Board makes the following determination with regard to the Rules of Professional Conduct and the Supreme Court Rule XIX:

99-DB-070:

Rules 1.1, 1.3, 1.5, 1.16(d), 5.5(a), 8.4(c) and (g) and Supreme Court Rule XIX, Section 9(C), have been violated by Respondent's unauthorized practice of law by accepting Mr. Olaremi's criminal case and a $2,500 fee while under suspension,[8] failing to provide competent and timely representation, failing to properly terminate the representation and failing to provide an accounting and refund of unearned fees.  Respondent engaged in misrepresentative conduct by accepting Mr. Olaremi's case when he was ineligible to practice law.  Respondent failed to cooperate with or respond to the disciplinary proceedings.

00-DB-061:

Rules 8.4(a) and (b) have been violated by Respondent's plea of nolo contendere to a charge of flight from a police officer and a guilty plea to driving while under a suspended license and failing to display a license plate on the vehicle.  Respondent's flight from a police officer calls into question his fitness to practice law.

Rule 8.4(d) has been violated by Respondent's failure to respond to the disciplinary complaint and participate in the disciplinary process which interfered in the administration of justice.

IV. APPLICATION OF FACTORS CONSIDERED IN IMPOSING SANCTIONS

Louisiana Supreme Court Rule XIX, Section 10(C) states that in imposing a sanction after a finding of lawyer misconduct, the Board shall consider the following factors:

(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;

(2) whether the lawyer acted intentionally, knowingly, or negligently;

(3) the amount of actual or potential injury caused by the lawyer's misconduct; and

(4) the existence of any aggravating or mitigating factors.

Sp. Ct. R. XIX, §10(C).

Based upon the deemed admitted facts and violations supported by the record, Respondent has intentionally violated duties owed to his client, Mr. Olaremi, to the public and violated duties owed as a professional.  Respondent failed to provide competent representation, use reasonable diligence, properly terminate representation and refund unearned fees.  Respondent failed to respond to two disciplinary complaints and participate in the disciplinary proceedings.  Mr. Olaremi has been harmed by the loss of his $2,500 fee and an unspecified delay in his criminal proceeding.  Public opinion of attorneys has been tarnished by Respondent's failure to respect the law and the Court's authority to govern attorneys.

Standard 4.61 provides for disbarment "when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potential serious injury to a client."  Standard 5.11 permits disbarment when:  "(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice."  Standard 7.1 allows for disbarment when "a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.  Respondent accepted the representation of and $2,500 fee from Mr. Olaremi when Respondent knew he was suspended from the practice of law and prohibited from representing clients.

Standard 5.12 suggests suspension is permitted when "a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice."  Respondent's no contest plea to fleeing from a police officer and guilty pleas to driving while his privileges were suspended and failing to display a license plate indicates a lack of respect for the law which reflects adversely on Respondent's fitness to practice law.  Respondent was given two months of jail time, fully suspended, one year of unsupervised probation, and a $110 fine.

Under the ABA Standards, the baseline sanction is disbarment for the Olaremi matter and suspension for the three criminal pleas.  The record supports the aggravating factors of prior disciplinary offenses,[9] dishonest or selfish motive, a pattern of misconduct and substantial experience in the practice of law[10].  The record supports the mitigating factor of other penalties regarding the criminal pleas.

If a respondent's current misconduct occurred during the same time as prior misconduct, the prior misconduct should not be treated as an aggravating factor, but should be considered contemporaneously with the current matter for the purpose of determining an appropriate sanction.  Louisiana State Bar Association v. Chatelain, 573 So.2d 470 (La. 1991).  In 1998, Respondent was disbarred for engaging in fifteen counts of misconduct including commingling and conversion of client funds, unauthorized practice of law, lack of competence, lack of diligence, failing to comply with reasonable requests for information, charging an excessive fee, failing to refund unearned client fees and failing to properly terminate client representation.  In re Eddie L. Stephens, 98-B-2515 (La. 12/11/98); 722 So.2d 1001.

The misconduct in the Olaremi matter occurred on or about October 16, 1996, during the same time as three of the counts that formed the basis for the disbarment.  In Count XIII, Velma Mingo engaged Respondent and paid him a fee to represent her two sons in a criminal matter in 1997.  In Count XIV, on or about November 27, 1996, Marvin E. Donaldson retained respondent to represent him in a criminal matter and paid him a $1,000 fee.  In Count XV, Clemone Lanieu engaged Respondent to represent him from January 1997 through trial.  In all three matters, Respondent was suspended from the practice of law at the time his services were engaged.  In re Eddie L. Stephens, 98-B-2515, p. 4; 722 So.2d at 1002-3.

In keeping with the Chatelain Court, the Board will consider the Olaremi matter with the misconduct that resulted in Respondent's disbarment (98-B-2515).  The Board finds that the Olaremi matter, 99-DB-070, would only serve to reinforce Respondent's disbarment and that the sanction of disbarment is sufficient to address the misconduct.  The Board finds that Respondent has violated additional Rules of Professional Conduct and Supreme Court Rule XIX and recommends these violations be added to his record in the event he should seek readmission.

The convictions which form the basis for 00-DB-061, flight from a police officer, driving with a suspended license and failing to display a license plate on the vehicle, occurred on January 26, 2000, and did not occur during the same time as prior misconduct.  Although these acts do not directly involve the practice of law, the Court has previously said "together with the conduct at issue . . . [these acts] show a pattern of misconduct which reflects adversely on respondent's professional fitness."  In re Blake J. Deshotels, 98-1349 (La. 10/9/98); 719 So.2d 402.  In Deshotels, the Court was concerned that Deshotel's DWI and disturbing the peace convictions may indicate an underlying problem which may impair his future representation of clients.  Id. For failing to properly terminate a client representation, two DWI's and one disturbing the peace conviction, the Court suspended Deshotels for six months with all but sixty days deferred, two years probations and enrollment in the Lawyer's Assistance Program.  Deshotels had no prior discipline, lacked a dishonest or selfish motive, cooperated with the disciplinary process and was remorseful.

In the case of In re Durinda L. Robinson , 01-B-2772 (La. 5/14/02); 819 So.2d 280, the Court suspended an attorney for her private conduct resulting in her knowing violation of a court's restraining order.  The Court suspended Robinson for one year but deferred eleven months and ordered her to seek mental health services.  The Court recognized the mitigating factors of no prior discipline, cooperative attitude toward the proceedings and other penalties imposed by the district court.

Unlike Robinson and Deshotels, Respondent has aggravating factors:  two prior suspensions and one disbarment and an uncooperative attitude toward the proceedings.  In mitigation, Respondent was penalized in the criminal proceedings, albeit light.  The Board recommends Respondent's conduct warrants a one-year suspension for his flight from a police officer, driving with a suspended license and failing to display a license plate.

RECOMMENDATION

The Board finds that ODC has proven the violation of Rules 1.1, 1.3, 1.5, 1.16(d), 5.5(a), 8.4(a), (b), (c), (d) and (g) of the Rules of Professional Conduct and Supreme Court Rule XIX, Section 9(C) by clear and convincing evidence.  The Board recommends that Eddie L. Stephens be adjudged to have committed additional Rule violations with regard to 99-DB-070, the Olaremi matter, and that these violations be added to his record in the event he should seek readmission.  With regard to 00-DB-061, the Board recommends that Eddie L. Stephens be suspended for one-year for fleeing a police officer, driving with a suspended license and failing to display a license plate and be assessed all disciplinary costs.  The Board recommends that the one-year suspension should commence only after he is readmitted to the bar should he be permitted to do so.

LOUISIANA ATTORNEY DISCIPLINARY BOARD

JUDY Y. BARRASSO

DONALD R. BROWN

DR. CONSTANCE C. DOLESE

ROBERT E. LEAKE, JR.

BILLY R. PESNELL

CHRISTOPHER H. RIVIERE

JACK O. WHITEHEAD, JR.

BY: _____________________________________

REGINALD R. BROWN, SR.

FOR THE ADJUDICATIVE COMMITTEE

PETER T. DAZZIO - Concurs with reason.


[1] Respondent was disbarred effective December 11, 1998, for numerous instances of commingling and conversion of client funds, neglect of legal matters and unauthorized practice of law. In re Stephens, 98-2515 (La. 12/11/98); 722 So.2d 1001.

[2] Formal Charges, July 20, 1999.

[3] Formal Charges, May 17, 2000.

[4] Committee #14 did not address the alleged violation of Supreme Court Rule XIX, Section 9(C).

Section 9. Grounds for Discipline.

It shall be a ground for discipline for a lawyer to:

* * * *

(c) willfully violate a valid order of the court or the board imposing discipline, willfully fail to appear before the board for admonition pursuant to Section 10(A)(5), or knowingly fail to respond to a lawful demand from a disciplinary authority, except that this rule does not require disclosure of information otherwise protected by applicable rules relating to confidentiality nor disclosure of information where the respondent urges a bona fide claim of privilege against testifying under the Constitution of the United States or of the State of Louisiana.

[5] Respondent was disbarred effective December 11, 1998, for numerous instances of commingling and conversion of client funds, neglect of legal matters, and unauthorized practice of law.  In re: Stephens, 98-2515 (La. 12/11/98); 722 So. 2d 1001.  Respondent was suspended from the practice of law for a period of eighteen months.  In re Stephens, 94-1924 (La.11/18/94); 645 So.2d 1133.  This suspension was ordered to run consecutively from an earlier suspension imposed as a result of In re Stephens, 624 So.2d 903 (La.1993), which respondent began serving on October 1, 1993.  Respondent never sought reinstatement from the 1994 suspension and therefore has remained ineligible to practice since October 1, 1993.

[6] ABA Standard 8.1:  "Disbarment is generally appropriate when a lawyer: (a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or (b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession."

[7] Sup.Ct.Rules, Rule 19, App. E, Lawyer Disciplinary Enforcement Rules

GUIDELINE 1. Repeated or multiple instances of intentional conversion of client funds with substantial harm.

GUIDELINE 2. Intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury.

* * * *

GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.

GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime.  Serious crime is defined in Rule XIX, Section 19.  Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

[8] In re Stephens, 94-1924 (La. 11/18/94); 645 So.2d 1133.

[9] In re Eddie Stephens, 93-B-0939 (La. 10/1/93); 624 So.2d 903; rehearing denied 626 So.2d 1182.  Suspended for one year for failing to maintain a client trust account, placing clients' funds into attorney's operating account and converting clients' funds to attorney's own use.

In re Eddie Stephens, 94-B-1924 (La. 11/18/94); 645 So.2d 1143.  Suspended for eighteen months for failing to keep client informed and notarizing a forged affidavit before filing it into a court record.  Stephens failed to seek reinstatement after the suspension was completed.

[10] Admitted to the Louisiana Bar on October 5, 1984.


CASE NAME:  Eddie L. Stephens DOCKET NO.(S):  99-DB-070 c/w 00-DB-061

DATE OF PANEL HEARING:  August 28, 2003

PANEL/AUTHOR:  Barrasso/Leake/R. Brown  VOTING ON: Formal Charges

CONCURRENCE:

Although I concur, the Hearing Committee's recommended disbarment, but since Respondent is already suspended, I reluctantly concur.

Baton Rouge, Louisiana this 2nd day of January 2004.

PETER T. DAZZIO