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In re Gray

Supreme Court of Louisiana

March 17, 2015

IN RE: JAMES A. GRAY, II

For Applicant: Charles Bennett Plattsmier, Yolanda Cezar, OFFICE OF DISCIPLINARY COUNSEL.

For Respondent: Ernest Lake Jones, ELIE, JONES & ASSOCIATES; James Austin Gray, II, GRAY & GRAY.

OPINION

Page 970

[2014-2085 La. 1] ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed bye the Office of Disciplinary Counsel (" ODC" ) against respondent, James A. Gray, II, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The Frith Matter

Gloria Frith retained respondent in 2004 to handle a medical malpractice claim. When he had failed to take any action in the matter by September 2009, Ms. Frith sent respondent a letter discharging him and requesting that he deliver a complete copy of her file to her new attorney, David L'Hoste. Respondent did not comply with Ms. Frith's request. In October 2009, and again in December 2009, Mr. L'Hoste sent letters to respondent requesting Ms. Frith's file, but respondent still did not provide the file.

In March 2010, Ms. Frith filed a disciplinary complaint against respondent. During a September 1, 2010 sworn statement, respondent testified that he had spoken to Ms. Frith several times regarding her malpractice claim, but he did not take any action in the matter because he was unable to locate an expert who would testify on Ms. Frith's behalf. He stated that he did not provide Ms. Frith and Mr. L'Hoste with the file in response to their letters because he was unable to locate it [2014-2085 La. 2] at that time. Respondent delivered a copy of the file during the sworn statement; however, the only documents in the file were those which Ms. Frith had provided respondent during the initial consultation.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), and 8.4(a) (violation of the Rules of Professional Conduct).

The Roberts Matter

In 2003, Barbara Roberts, her siblings, and her father hired respondent to represent them in a claim for the wrongful death of Ms. Roberts' brother while he was an inmate in the St. Tammany Parish Jail. In July 2003, respondent filed a lawsuit on behalf of his clients. On May 5, 2010, the case was dismissed on grounds of abandonment. Respondent did not inform his clients of the dismissal. In fact, one of Ms. Roberts' siblings informed respondent of the dismissal after checking with the court. When he learned of the dismissal, respondent indicated he would file an appeal. However, he never did so.

In November 2010, Ms. Roberts filed a disciplinary complaint against respondent. Respondent received notice of the complaint but failed to respond. The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, 1.16(d), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a).

The Reed Matter

[2014-2085 La. 3] On February 2, 2010, Frederick Reed pleaded guilty to one count of manslaughter

Page 971

and one count of attempted second degree murder. On February 5, 2010, Frederick, in proper person, filed a motion to withdraw his guilty plea. On February 9, 2010, Frederick's father paid respondent $18,750 of a $25,000 fee to represent Frederick with respect to the motion to withdraw his guilty plea, a direct appeal of his sentence, and post-conviction proceedings.

Respondent did not enroll as Frederick's counsel of record, and neither he nor Frederick received notice of a hearing on the motion to withdraw the guilty plea. The record indicates that the judge denied Frederick's motion on February 19, 2010 without a hearing. Neither respondent nor Frederick received notice of the denial of the motion.

In March 2010, respondent visited Frederick at the Union Parish Detention Center. In July 2010, respondent visited Frederick at Elayn Hunt Correctional Facility. When Frederick learned that respondent had not enrolled as his counsel of record, he and respondent decided to terminate the representation. Respondent then refunded $14,000 of the $18,750 that Frederick's father had paid toward the fee.

In December 2010, Frederick filed a disciplinary complaint against respondent, alleging that respondent neglected his legal matter. Frederick also demanded a refund of the remaining funds his father paid. Respondent received notice of the complaint but failed to respond.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(a) (charging an unreasonable fee), 1.5(b) (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable [2014-2085 La. 4] time after commencing the representation), 1.5(f)(5) (failure to refund an unearned fee), 8.1(c), and 8.4(a).

The Burns Matter

In May 2009, Peggy Small Burns hired respondent to represent her in a succession matter. They agreed to a $5,000 fee, and Ms. Burns paid respondent a total of $3,900 over a period of seven months. However, Ms. Burns stopped making payments because she was unable to communicate with respondent about the status of her legal matter. On July 18, 2011, Ms. Burns wrote to respondent to terminate the representation due to his failure to communicate with her. She also requested the return of her file and a refund of the $3,900 she paid.

In July 2011, Ms. Burns filed a disciplinary complaint against respondent. On October 13, 2011, respondent provided the ODC with a sworn statement, during which he presented a copy of Ms. Burns' file. Respondent testified that he would contact Ms. Burns to determine whether she wanted him to continue the representation.

In response to the ODC's inquiry, Ms. Burns confirmed that respondent contacted her about completing the matter, but she indicated that he subsequently failed to take any further action. She also indicated that the file respondent provided contained only documents she submitted to respondent and some of her documents were missing from the file.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, 1.5(a), 1.5(b), 1.5(f)(5), 1.16(d), and 8.4(a).

DISCIPLINARY PROCEEDINGS

[2014-2085 La. 5] In August 2012, the ODC filed formal charges against respondent. Respondent answered the charges, essentially denying any misconduct. The matter then ...


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