Summary
finding "the majority failed to adequately consider the large number of mitigating factors related to the trust account violations at issue"
Summary of this case from In re TrieuOpinion
NO. 2019-B-1680
03-09-2020
IN RE: Connie P. TRIEU
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Connie P. Trieu, an attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
On September 12, 2016, an overdraft occurred in respondent's trust account. On September 20, 2016, the ODC received notice of the overdraft from respondent's bank. The ODC then sent notice of the overdraft to respondent with a standard request for her accounting records for the previous six months. Respondent, whose law practice consists primarily of real estate closings, complied.
Using the records provided by respondent, the ODC's forensic auditor performed an audit of respondent's trust account for the period between July 2016 and September 2016.
Although the September 12, 2016 overdraft was the result of a lender's failure to timely wire to respondent funds associated with a real estate transaction respondent was handling, the audit revealed multiple amounts due to buyers or sellers that appeared to have been improperly held in respondent's trust account. Respondent disbursed all of the funds after the audit period. Furthermore, on four occasions during the audit period, respondent disbursed funds a day or two prior to the associated deposits.
In addition to the issues that occurred during the audit period, respondent also held buyer and seller funds in her trust account from time periods outside of the audit period, as follows:
1. Respondent concluded a matter on September 24, 2013. However, $185 owed to the seller for a lien placed on November 6, 2013 remained undisbursed as of September 30, 2016. Respondent did not disburse the funds until December 20, 2016.
2. Respondent concluded a matter on November 26, 2013. However, $3,283.04 owed to the seller remained undisbursed as of September 30, 2016. Respondent did not disburse the funds until January 4, 2017.
3. Respondent concluded a matter on February 7, 2014. However, $14.51 owed to the buyer as excess cash for closing costs remained undisbursed as of September 30, 2016. Respondent did not disburse the funds until December 20, 2016.
4. Respondent concluded a matter on January 3, 2014. However, $1,000 owed to the sellers for a lien remained undisbursed as of September 30, 2016. Respondent did not disburse the funds until December 7, 2016.
5. Respondent concluded a matter on August 28, 2015. However, $1,000 owed to the seller for a damage deposit held in escrow remained undisbursed as of September 30, 2016.
Respondent did not disburse the funds until December 13, 2016.
6. Respondent concluded a matter on November 30, 2015. However, $214.50 owed to the buyer remained undisbursed as of September 30, 2016. Respondent did not disburse the funds until December 20, 2016.
7. In various other instances, respondent held small amounts of funds totaling $78.04 in her trust account that were owed to either buyers or sellers.
The audit further revealed a total of $722.88 in undisbursed funds as of September 30, 2016 with no documentation provided to determine the applicable payee and/or no information as to whether the funds have since been disbursed. Finally, the audit revealed that, as of September 30, 2016, respondent had $274.07 of her own funds in the trust account relative to a matter with no activity since May 31, 2015.
DISCIPLINARY PROCEEDINGS
In May 2018, the ODC filed formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (a lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property), 1.15(b) (a lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account or obtaining a waiver of those charges, but only in an amount necessary for that purpose), and 1.15(d) (failure to timely remit funds to a client or third person).
Through counsel, respondent answered the formal charges, acknowledging her misconduct but denying that she acted intentionally. Specifically, she claimed that, in many cases, she was awaiting city or parish releases before being able to refund money to buyer or sellers, and she had trouble tracking down the buyer or seller who was due the refund in some cases. Respondent also indicated that she is now using Softpro Reconciliation Services software, which reconciles her trust account daily in order to make sure all funds therein are accounted for while assisting in the appropriate remittances.
The matter then proceeded to a formal hearing on the merits.
Hearing Committee Report
After considering the testimony and evidence presented at the hearing, the hearing committee found that the allegations of rule violations were proven; thus, respondent violated Rules 1.15(a), 1.15(b), and 1.15(d) of the Rules of Professional Conduct. The committee also found that respondent was credible with respect to her explanations for her actions, and there was no malice, no self-dealing, and no fraudulent or improper motivation for her actions.
The committee then determined respondent negligently violated duties owed to the legal profession and the public, concluding that respondent's management of her trust account was good-intentioned but also negligently non-diligent. The committee further determined that respondent's actions caused the potential for harm. Based on the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension.
In aggravation and mitigation, the committee noted that respondent ultimately returned all of the funds to the parties to whom they were owed and that she is a solo practitioner who manages her office almost entirely on her own. The committee also noted that respondent's unintentional lack of oversight of her office management and recordkeeping did not cause any actual harm to her clients and did not benefit her in any way. The committee further noted that respondent has practiced law for eleven years and does not have a prior disciplinary record. Additionally, she cooperated fully with the ODC's investigation and acknowledged, with explanation, all of her misconduct. Finally, the committee found respondent to be sincere and remorseful.
In light of the above and after considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for six months, fully deferred, subject to attendance of an IOLTA account management course.
Neither respondent nor the ODC filed an objection to the committee's report.
Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee's factual findings are supported by the record and are not manifestly erroneous. As such, the board adopted same. Based on the proven facts, the board agreed with the committee that respondent violated Rules 1.15(a), 1.15(b), and 1.15(d) of the Rules of Professional Conduct.
The board noted that respondent retained buyer and seller funds, as well as her own funds, in her trust account for an extended period of time, but she explained her conduct during her testimony. For instance, respondent testified that, in one instance, she retained $300 to cover a grass lien filed against a seller by Jefferson Parish. According to respondent, she had difficulty obtaining a release from Jefferson Parish and then had trouble making contact with the seller to find out where to send the refund. In another instance, respondent testified that she held $3,000 in trust to pay damage repairs and a lien. The lien was paid, and respondent received a $283.04 reduction in the seller's taxes. However, the parties failed to notify her that repairs had been completed and the funds could be released. In a third instance, she held $1,000 of the sellers' funds to cover any liens. After review, she determined that the lien violation was cancelled. However, when she tried to find the sellers, she learned one was deceased and she had to confirm the other seller, the decedent's brother, was the only heir before disbursing the funds. In another instance, the sellers provided a $1,000 damage deposit because they could not move out of the property by the closing date. Although the sellers eventually moved out without causing any damage, they failed to notify respondent.
Based on this testimony and the other evidence in the record, the board determined that respondent negligently violated duties owed to her clients. The board agreed with the committee that respondent's conduct was the result of communication failures and a failure to diligently attend to her duty to remit funds to buyers and sellers. Regarding harm, the board again agreed with the committee that, while respondent caused no actual harm, the potential for harm existed. The board described respondent as a solo practitioner who handles a high volume of real estate transactional work in addition to maintaining a civil law practice and concluded that respondent was somewhat inattentive and failed to follow up on a few matters in which she was asked to escrow funds to facilitate real estate transactions.
After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for six months, fully deferred, subject to attendance of the Louisiana State Bar Association's Trust Accounting School during the period of deferral. The board also recommended respondent be assessed with all costs and expenses of this proceeding.
One board member dissented and would recommend a public reprimand.
Neither respondent nor the ODC filed a timely objection in this court to the disciplinary board's recommendation. However, after the expiration of the time for filing objections under Supreme Court Rule XIX, § 11(G)(1), respondent sought to file a "late" objection. On December 18, 2019, we issued an order rejecting respondent's objection as untimely and, therefore, procedurally improper but permitting the filing of briefs, without oral argument. Respondent and the ODC both 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.
In this matter, the record supports a finding that respondent failed to promptly remit funds to clients and third parties and allowed a modest amount of her attorney's fees to remain in her trust account. This misconduct amounts to a violation of the Rules of Professional Conduct as charged.
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 her clients. We agree with the hearing committee and the disciplinary board that she acted negligently, causing no actual harm but causing the potential for harm. The baseline sanction for this type of misconduct is suspension.
Aggravating factors include a pattern of misconduct and substantial experience in the practice of law (admitted 2006). Mitigating factors include the absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. In further mitigation, the record reflects that respondent has taken corrective action to prevent instances of similar misconduct in the future.
In re: Garrett , 17-1460 (La. 11/17/17), 228 So. 3d 1212, provides guidance regarding the appropriate sanction for respondent's misconduct. In Garrett , an attorney failed to timely pay a third party and mishandled his client trust account, resulting in the commingling and conversion of client funds. For this misconduct, we suspended the attorney from the practice of law for six months, fully deferred, subject to one year of probation. Here, although there is no evidence that respondent's conduct resulted in the conversion of funds to her own use, she failed to timely remit funds owed to others and commingled her funds with client and third-party funds. Under these circumstances, a similar sanction as that imposed in Garrett is appropriate.
Accordingly, we will adopt the board's recommendation and suspend respondent from the practice of law for six months, fully deferred, subject to her attendance at Trust Accounting School during the period of deferral.
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 Connie P. Trieu, Louisiana Bar Roll number 30312, be and she hereby is suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to the condition that respondent shall attend the Louisiana State Bar Association's Trust Accounting School during the deferral period. Any misconduct during the deferral period may be grounds for making the deferred 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.
Crichton, J., concurring in part and dissenting in part.
I agree with the majority's determination that respondent has violated the Rules of Professional Conduct as charged. However, I disagree with the sanction imposed, as I find it too harsh under the particular circumstances of this case. Although the violations here fall below the standard expected in the legal profession, I find the majority failed to adequately consider the large number of mitigating factors related to the trust account violations at issue. These include the absence of a prior record, absence of a dishonest or selfish motive, full and free disclosure to the Disciplinary Board and a cooperative attitude toward the proceedings, and remorse. Further, respondent has remitted all funds due and has taken corrective action to prevent instances of similar misconduct in the future. Consequently, I dissent from the majority's sanction, and would order a public reprimand. See In re: Butler , 18-1812 (La. 5/8/18), 283 So. 3d 455 (Crichton, J., dissenting from the sanction imposed as too harsh, finding significant mitigating factors the majority failed to adequately consider); In re: Abdalla , 17-453 (La. 10/18/17), 236 So. 3d 1223 (same).