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In re Pierre

Supreme Court of Louisiana

January 23, 2015

IN RE: VIVICA D. SMITH PIERRE

IN RE: Disciplinary Counsel; In Re: Confidential Party; - Other(s); Applying For Joint Motion For Consent Discipline Pursuant To Rule XIX, Section 20.

Consent discipline accepted.

Bernette J. Johnson, John L. Weimer, Greg G. Guidry, Marcus R. Clark, Jefferson D. Hughes, III. KNOLL, J., dissenting. CRICHTON, J., dissenting.

OPINION

Page 1104

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

The Office of Disciplinary Counsel (" ODC" ) commenced an investigation into allegations that respondent commingled and converted client funds, failed to promptly provide an accounting to her client, and made dubious entries on the belated accounting to justify the retention of the client's funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.4(a), 1.5(f)(3), 1.5(f)(5), 1.15(c), 1.15(d), 8.4(a), and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Vivica D. Smith Pierre, Louisiana Bar Roll number 22625, be suspended from the practice of law for a period of three years, subject to the conditions set forth in the petition for consent discipline.

IT IS FURTHER ORDERED that 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.

DISSENT

KNOLL, J., dissenting

While I agree respondent's conduct warrants discipline, I would reject the petition for consent discipline on the ground the three-year suspension proposed by the parties is unduly lenient under the facts presented. Respondent's actions reveal a fundamental lack of moral fitness. As such, I believe the only appropriate sanction is disbarment.

The facts, as stipulated by the parties, reveal respondent engaged in a pattern of overbilling and fraudulent billing of her client,[1] as well as repeated instances of commingling, conversion and misuse of client funds. The true magnitude of respondent's conversion is unclear from the petition, but respondent acknowledges that she converted at least $10,514.07, which was entrusted to her by the client to pay a third party. Despite this acknowledgment, respondent has not made any effort to pay restitution over the last eight years.

In the landmark case of Louisiana State Bar Ass'n v. Hinrichs, 486 So.2d 116 (La. 1986), we explained that when a lawyer converts client funds, disbarment is generally appropriate when one or more of the following elements are present: the lawyer acts in bad faith and intends a result inconsistent with his client's interest; the

Page 1105

lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; and the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings. Id. at 122. In my opinion, all of these elements are present in the case sub judice. Accordingly, disbarment is clearly appropriate.

For these reasons, I respectfully dissent from the majority's opinion and would reject the petition for consent discipline.

CRICHTON, J., dissenting

I fully agree with the reasons assigned in Justice Knoll's dissenting opinion. I write separately to emphasize I find respondent's actions in this matter are particularly outrageous, consisting of repeated instances of commingling, conversion and misuse of client funds. In my view, any lawyer who converts client funds is not fit to hold a license to practice law in this state and should be disbarred. Accordingly, I respectfully dissent from the majority's opinion and would reject the petition for consent discipline.


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