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In re Bercier

Supreme Court of Louisiana

March 27, 2015

IN RE: MICHAEL H. BERCIER

OPINION

Page 171

[2014-2352 La. 1] ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (" ODC" ) against respondent, Michael H. Bercier, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

12-DB-075[1]

The Fontenot Matter

In March 2008, Brian Fontenot hired respondent to represent him in a

Page 172

personal injury matter following a March 10, 2008 automobile accident. On May 27, 2008, Mr. Fontenot mailed a letter to respondent via certified mail in which he terminated respondent's services. The next day, respondent's wife, Monique Bercier, received and signed for the termination letter. Nevertheless, on June 12, 2008, respondent filed a lawsuit in the 15th Judicial District Court for the Parish of Lafayette on Mr. Fontenot's behalf without Mr. Fontenot's knowledge or consent.

Meanwhile, Mr. Fontenot hired new counsel to represent him. Unaware of the Lafayette Parish lawsuit, Mr. Fontenot's new counsel filed a lawsuit on his behalf in the 32nd Judicial District Court for the Parish of Terrebonne. Once his [2014-2352 La. 2] new counsel found out about the Lafayette Parish lawsuit, Mr. Fontenot had to expend additional time and resources to dismiss same.

In November 2008, Mr. Fontenot filed a disciplinary complaint against respondent. In response to the complaint, respondent indicated he did not receive Mr. Fontenot's termination letter until June 12, 2008, after he had already filed the Lafayette Parish lawsuit on Mr. Fontenot's behalf. In support of his contention that he did not receive Mr. Fontenot's termination letter until after he filed the lawsuit, respondent provided the ODC with a copy of the envelope containing the letter. Handwritten on the envelope were the following notations: " 5/28 1st attempt" bearing the initials " MLH" and " 6/12 2nd attempt & Delivery" bearing the initials " MLH." According to the certified mail green card return receipt, the termination letter was delivered and signed for on May 28, 2008. Therefore, contrary to respondent's explanation, the post office could not have made a " 2nd attempt and Delivery" of the termination letter on June 12, 2008. Furthermore, the ODC later learned that respondent or his office staff altered the copy of the envelope provided to the ODC by placing the false attempted delivery notations on same. Given an opportunity to further explain the situation, respondent provided additional false and misleading statements regarding his receipt of the termination letter. This time, he claimed he did not receive the termination letter until after he filed the Lafayette Parish lawsuit because his estranged wife, Monique Bercier, who had signed the date of delivery as May 28, " had many problems mishandling mail as she was angry with trying to train a new secretary." Respondent then provided the ODC with the original envelope, which contained only the handwritten dates of " 5/28" and " 6/12." When asked about the discrepancy between the original envelope and the copy provided to the ODC, respondent indicated that his secretary/office manager, Mary Hale, had written the additional notations on the copy of the envelope after asking the postmaster for an [2014-2352 La. 3] explanation of the dates. Respondent further claimed Ms. Hale's notations were simply meant as a clarification of the dates to assist the ODC in its investigation and not meant to " mislead or hinder" the investigation.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a) (scope of the representation), 1.4 (failure to communicate with a client), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct

Page 173

involving dishonesty, fraud, deceit, or misrepresentation).

12-DB-080

The Jordan Matter

Thomas Hussman, Jr. bequeathed all of his immovable property, namely a piece of real estate located in Many, Louisiana, to respondent in his will. However, prior to his death, Mr. Hussman took out a loan from Equity Home Lenders, Inc. using the property as collateral. When Mr. Hussman died in April 2011, the Equity collateral mortgage loan remained outstanding.

On June 28, 2011, respondent wrote to Equity, advising that he was representing the interest of Mr. Hussman's heirs. He also asked that Equity " cease any collection efforts as balance will be paid upon completion of succession." On July 20, 2011, respondent made a $289 payment to Equity in connection with the collateral mortgage via a check from his law office bank account.

On August 8, 2011, respondent wrote to Equity's attorney, Donald L. Wilson, advising that he was representing the interest of Mr. Hussman's heirs and asking for a copy of Mr. Hussman's title for the property. That same day, Mr. Wilson forwarded respondent a copy of the deed and a copy of the collateral mortgage on the property.

[2014-2352 La. 4] Respondent subsequently hired attorney Maurice Tynes to handle Mr. Hussman's succession. The succession documents were filed on October 13, 2011, with the detailed descriptive list stating the value of the property as $75,000. The next day, the judge signed the judgment of possession.

Meanwhile, respondent listed the property for sale through real estate agent Anne Trahan. On October 8, 2011, John and Nancy Jordan submitted an offer to purchase the property for $55,000, and respondent accepted this offer on October 13, 2011. The purchase agreement signed by both respondent and the Jordans clearly stated that

SELLER shall deliver to BUYER a merchantable title at SELLER's costs... SELLER's title shall be merchantable and free of all liens and encumbrances except those that can be satisfied at Act of Sale. All cost and fees required to make title merchantable shall be paid by SELLER...

The Jordans asked Ms. Trahan if respondent had clear title to the property. When Ms. Trahan questioned respondent, he informed her of the succession proceedings but not of the collateral mortgage. Neither Ms. Trahan nor the Jordans were informed of the collateral mortgage prior to the closing. The Jordans knew respondent was an attorney, so they opted ...


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