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In re Bandaries

Supreme Court of Louisiana

December 9, 2014

IN RE: MADRO BANDARIES

For Applicant: Charles Bennett Plattsmier, G. Fred Ours, OFFICE OF DISCIPLINARY COUNSEL.

For Respondent: Elizabeth Skelly Cordes, E. Phelps Gay, Mary Beth Meyer, CHRISTOVICH & KEARNEY; Madro Bandaries, MADRO BANDARIES, PLC.

WEIMER, J., dissenting.

OPINION

Page 1153

[14-1435 La. 1] ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (" ODC" ) against respondent, Madro Bandaries,[1] an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

On February 3, 2009, respondent and Joanna Cassidy entered into a " Legal Engagement and Retainer Agreement," which purported to be an agreement for the representation of Ms. Cassidy in certain legal and business matters. The retainer agreement contained a provision

Page 1154

that if there was " any dispute" between respondent and Ms. Cassidy, " the proper venue for litigation would be the Parish of Orleans, State of Louisiana." Thereafter, respondent began making monetary advances to Ms. Cassidy for a variety of purposes, including travel and the payment of her mortgage note and other expenses relating to a residence she maintained in Natchitoches, Louisiana. These advances ultimately totaled more than $33,000.

In February 2010, the relationship between respondent and Ms. Cassidy ended, and respondent, relying upon the retainer agreement, demanded repayment of the advances he had made. Ms. Cassidy then engaged the services of New [14-1435 La. 2] Orleans attorney Fred Herman to represent her interests in the termination of the retainer agreement.[2] Mr. Herman prepared and filed a Petition for Declaratory Relief on behalf of Ms. Cassidy, asserting that the " Legal Engagement and Retainer Agreement" was invalid; that the parties had never intended for there to be an attorney-client relationship between them; and that no amounts were due by Ms. Cassidy pursuant to the retainer agreement. Ms. Cassidy's petition was filed on March 23, 2010 in the Orleans Parish Civil District Court. Joanna Cassidy v. Madro Bandaries, PLC and Madro Bandaries, No. 10-2781, Division " I."

On the next day, March 24, 2010, and prior to any service of Ms. Cassidy's suit on respondent or his law firm, attorney Edward Moreno, on behalf of and at the direction of respondent, filed a petition captioned Madro Bandaries, PLC and Nathen Bandaries v. Joanna V. Cassidy, No. 10-2840 on the docket of the Orleans Parish Civil District Court, Division " E." This petition was styled as " Plaintiffs' Original Complaint for Return of Advances Made to Defendant." The petition referred to the February 3, 2009 retainer agreement between respondent and Ms. Cassidy and demanded reimbursement of advances made to her or on her behalf totaling $33,744.14. Plaintiffs subsequently filed a motion to dismiss this lawsuit without prejudice, which was granted by order dated May 20, 2010. However, on May 28, 2010, the voluntary dismissal was vacated on motion of Ms. Cassidy. Plaintiffs then amended the petition to seek recovery only of legal fees which respondent contended Ms. Cassidy owed for services rendered. On July 14, 2010, the two Orleans Parish cases were consolidated before Judge Piper Griffin.[3]

[14-1435 La. 3] In the meantime, three lawsuits were filed against Ms. Cassidy in the 10th Judicial District Court for the Parish of Natchitoches and in the Natchitoches City Court. The ODC alleges that each of the Natchitoches suits raised legal and factual arguments that were essentially identical to those which respondent had already raised in the Orleans Parish case.

In the petition filed in Nathen Bandaries v. Joanna Cassidy, No. 83345 on the docket of the 10th JDC (filed April 19, 2010), respondent omitted specific reference

Page 1155

to the February 3, 2009 retainer agreement; however, pleading theories of breach of contract and unjust enrichment, he demanded reimbursement of the identical sum, $33,744.14, sought in the lawsuit filed in Orleans Parish. This suit was dismissed by the trial court, Judge Dee Hawthorne presiding, who over respondent's objection granted Ms. Cassidy's exception of lis pendens on July 19, 2010. All costs were assessed against respondent. Respondent filed a motion for new trial on July 22, 2010, which was denied by Judge Hawthorne following a hearing. All costs were again assessed against respondent. Respondent then appealed the trial court's judgment. On June 1, 2011, the court of appeal affirmed and assessed all costs of the appeal against respondent. Bandaries v. Cassidy, 11-161 (La.App. 3rd Cir. 6/1/11), 66 So.3d 564.

In Echelon, Inc. v. Joanna Cassidy, No. 25,776-10 on the docket of the Natchitoches City Court (filed May 26, 2010), styled as " Petition Seeking Return of Funds," the plaintiff corporation[4] alleged that Ms. Cassidy had withdrawn the sum of $1,958.32 from a bank account without authorization and converted the funds to her own use. Ms. Cassidy filed an exception of lis pendens and a motion to transfer the case to the 10th JDC, both of which were denied by the trial court, Judge Fred Gahagan presiding. Following a trial on September 21, 2010, Judge [14-1435 La. 4] Gahagan dismissed the suit and assessed all costs against Echelon.[5] Echelon appealed; however, the appeal was abandoned and, by agreement of Echelon, was dismissed by the trial court. Ms. Cassidy then filed a motion and order to tax costs. On May 9, 2011, Judge Gahagan signed a judgment assessing Echelon with costs in the amount of $1,017.81. Echelon moved for reconsideration of the judgment taxing costs or an appeal of that judgment on May 18, 2011. Judge Gahagan granted an order of appeal the following day. On April 4, 2012, the court of appeal affirmed the trial court's judgment assessing costs to Echelon and amended the judgment to award damages for frivolous appeal in the amount of $2,500 payable to Ms. Cassidy. Costs of the appeal were assessed against Echelon. Echelon sought review in this court, but its writ was denied. Echelon, Inc. v. Joanna Cassidy, 11-1517 (La.App. 3rd Cir. 4/4/12), 90 So.3d 559 (not designated for publication), writ denied, 12-1014 (La. 6/22/12), 91 So.3d 975.

In Nathen Madro Bandaries v. Joanna Cassidy, No. 25,946-10 on the docket on the Natchitoches City Court (filed August 23, 2010), styled as " Petition Seeking Return of Funds Advanced to Defendant to Maintain Her Real Property," respondent demanded reimbursement of $10,000 he had advanced to Ms. Cassidy for the payment of her mortgage note and other expenses relating to her residence in Natchitoches. The allegations regarding this advance were also contained in the Orleans Parish lawsuit filed by respondent in March 2010 and in the 10th JDC suit filed in April 2010. The suit was dismissed by Judge Gahagan, who over respondent's objection granted Ms. Cassidy's exception of lis pendens on November 15, 2010. Judge Gahagan also ordered respondent to pay $2,500 as a sanction under La. Code Civ. P. art. 863 for filing the lawsuit for improper [14-1435 La. 5] purposes. Respondent's motion for appeal was denied as untimely on

Page 1156

December 6, 2010. Respondent then moved for reconsideration of the order denying the motion for appeal. While the motion for reconsideration was pending, respondent filed a motion to recuse Judge Gahagan, alleging that his rulings were based upon " extrajudicial knowledge of facts/circumstances not in the record." Following a hearing, the motion to recuse was denied by Judge Eric Harrington of the 10th JDC. Thereafter, respondent was granted a suspensive appeal of the judgment dismissing the suit and ordering the $2,500 sanction. On March 8, 2012, the court of appeal affirmed the trial court's judgment in all respects, and also sanctioned respondent an additional $2,500 for filing a frivolous appeal. Respondent ...


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