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In re Toaston

Supreme Court of Louisiana

September 6, 2017

IN RE: RANDAL ALANDRE TOASTON

          ATTORNEY DISCIPLINARY PROCEEDING

          PER CURIAM

         This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Randal Alandre Toaston, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Toaston, 14-1734 (La. 8/15/14), 147 So.3d 688.

         UNDERLYING FACTS

         Prologue Count - The Attorney Registration Requirement Matter

         At all pertinent times during the ODC's investigations of the twenty-six disciplinary complaints at issue in this disciplinary proceeding, respondent's primary address registered with the Louisiana State Bar Association ("LSBA") was 7330 Highland Road, Suite 120, Baton Rouge, Louisiana 70808. On August 8, 2014, a judgment of eviction was signed, ordering respondent to vacate the premises of his LSBA primary registration address. Thereafter, the landlord changed the locks. Nevertheless, on or about August 24, 2014, respondent entered the premises by using the services of "Pop-A-Lock" and removed client files and other items.

         On August 22, 2014, following respondent's interim suspension from the practice of law, a curator was appointed to conduct an inventory of respondent's files and to take appropriate action to protect the interests of respondent's clients. The curator never recovered any files from respondent.

         As of the date of this opinion, respondent still has not updated his primary registration address with the LSBA. His Louisiana Attorney Report still lists his office address as 7330 Highland Road, Suite 120, Baton Rouge, Louisiana 70808.

         Based on his failure to update his primary registration address, the ODC alleged that respondent violated Rule 1.1(c) (a lawyer is required to comply with all of the requirements of the Supreme Court's rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address, and proper disclosure of trust account information or any changes therein) of the Rules of Professional Conduct in each of the following twenty-six counts of misconduct.

         Count I - The White Matter

         On May 3, 2013, Thaddeus White hired respondent to represent him in three pending criminal matters. Mr. White's wife subsequently paid respondent $600, and respondent apparently agreed to reduce Mr. White's remaining fee balance by $200 to $250 for each new client Mr. White referred to him. Although respondent denied agreeing to this referral fee arrangement, he did admit that his clients would see him more often if they referred other clients to him. Mr. White only referred one client to respondent.

         Mr. White's pending criminal matters included cases in the 19th Judicial District Court (probation revocation) and Baton Rouge City Court (traffic ticket). Respondent performed no legal services for Mr. White in these two matters, claiming that Mr. White modified their legal services agreement to limit the representation to his third criminal case in the 18th Judicial District Court (pending felony charge).

         With respect to the 18th Judicial District Court case, respondent appeared with Mr. White for his arraignment. Respondent also appeared for subsequent court dates, all of which were continued. However, he failed to appear for a December 4, 2013 plea hearing. As such, the court appointed a public defender to assist Mr. White, who entered a guilty plea at that time.

         Respondent also failed to appear for at least three scheduled meetings with Mr. White and failed to return numerous telephone calls from Mr. White's family seeking the status of his cases. Respondent additionally failed to refund any of the fee paid or place any portion of the fee into his client trust account as disputed.

         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), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(a) (charging an unreasonable fee), 1.5(f)(5) (failure to refund an unearned fee), 3.2 (failure to make reasonable efforts to expedite litigation), 7.2(c)(13) (a lawyer shall not give anything of value to a person for recommending the lawyer's services), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

         Count II - The Client Trust Account Matter

         On November 8, 2013, respondent's client trust account was overdrawn in the amount of $39.50 upon presentation of a $220 check. Between October 2013 and July 2014, respondent wrote checks from the trust account made payable to "Cash" and withdrew cash from the trust account at the bank in excess of $50, 000, which left no record of the purpose of the funds.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 1.15(f) (on client trust accounts, cash withdrawals and checks made payable to "Cash" are prohibited), 8.4(a), and 8.4(c).

         Count III - The Clark Matter

         On June 4, 2013, Henry Clark paid respondent $500 toward an agreed $1, 000 fee for respondent to file a writ of certiorari on Mr. Clark's behalf. Mr. Clark subsequently made numerous telephone calls to respondent, which were unanswered and unreturned. After the time for filing the writ expired with no action by respondent, Mr. Clark attempted to contact respondent to arrange for a refund of the $500 he paid.

         Respondent, by letter, agreed to meet with Mr. Clark at Mr. Clark's home to discuss the refund, but respondent failed to appear as scheduled. Respondent also failed to return numerous telephone calls from Mr. Clark. A woman presumably sent by respondent returned Mr. Clark's client file to him. However, Mr. Clark never received a refund.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.5(a), 1.5(f)(5), 1.16(a) (a lawyer shall withdraw from the representation of a client if the lawyer is discharged), 1.16(d) (obligations upon termination of the representation), 8.4(a), and 8.4(c).

         Count IV - The Grayson Matter

         On September 11, 2013, Brandi Grayson hired respondent to represent her in a domestic matter. Ms. Grayson's father paid respondent's $350 fixed fee. Respondent did not enroll as Ms. Grayson's counsel of record, did not appear in court, and did not file any pleadings. Respondent did not refund the unearned fee.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a), 1.3, 1.4, 1.5(a), 1.5(f)(5), 1.16(a), 1.16(d), 8.4(a), and 8.4(c).

         Count V - The Chaney Matter

          On December 12, 2013, Tony Chaney hired respondent to represent his interests in a pending federal civil case. By January 3, 2014, Mr. Chaney paid respondent a total of $500 for the representation. Respondent did not enroll as counsel of record in the case or file any pleadings prior to Mr. Chaney terminating his services. Respondent agreed Mr. Chaney was owed a refund and met with Mr. Chaney twice following the termination. Nevertheless, respondent failed to refund the unearned fee. Mr. Chaney filed a claim with the LSBA's Client Assistance Fund seeking to recover the fee.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a), 1.3, 1.4, 1.5(a), 1.5(f)(5), 8.4(a), and 8.4(c).

         Count VI - The Edwards Matter

         In November 2003, Leonard Edwards pleaded guilty in a criminal matter and was sentenced to prison. In April 2013, Mr. Edwards hired respondent to represent him in an attempt to have his sentenced reduced by modifying it to run concurrently with another sentence. Mr. Edwards' parents paid respondent a total fee of $2, 000.

         Mr. Edwards met with respondent one time and had no further contact with him. Mr. Edwards and his parents called respondent numerous times and left several messages, all of which were unanswered and unreturned. Respondent answered one call from Mr. Edwards' father and said he would call him back, but he failed to do so.

         Instead of pursuing the sentence modification Mr. Edwards had requested, respondent drafted a motion for a new trial based on new evidence, failing to pursue the matter for which he was retained. As a matter of law, such a motion was untimely and unavailable given Mr. Edwards' guilty plea. Respondent agreed the Edwards family was owed a refund but failed to provide same. Mr. Edwards filed a claim with the Client Assistance Fund seeking to recover the fee.

         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), 1.2(a), 1.3, 1.4, 1.5(a), 1.5(f)(5), 8.4(a), and 8.4(c).

         Count VII - The Sanford Matter

         In February 2013, Emerald Sanford paid respondent $500 to complete an expungement of a criminal record. Ms. Sanford was not able to afford the filing fees until September 2013. However, when she tried to contact respondent at the time about proceeding with the expungement, her repeated telephone calls and text messages to respondent were not answered or returned. Respondent did not file the expungement or provide any services to Ms. Sanford, admitting that he "dropped the ball" and owed Ms. Sanford a full refund. Nevertheless, he has not refunded any of the fee.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a), 1.3, 1.4, 1.5(a), 1.5(f)(5), 8.4(a), and 8.4(c).

         Count VIII - The Theus Matter

         At some point between September 5, 2012 and January 23, 2013, Victor Theus hired respondent to represent him in a criminal matter. Mr. Theus' mother paid respondent $500 for the representation. Respondent filed no pleadings on Mr. Theus' behalf but did adopt the pro se motions Mr. Theus had filed himself. Respondent failed to appear at three of five hearings that were scheduled after he was hired. Mr. Theus pleaded guilty in November 2013 and, thereafter, attempted to retrieve his client file from respondent. To that end, Mr. Theus called respondent fifteen to twenty times and sent him several letters, all of which were unanswered and unreturned. Respondent failed to return Mr. Theus' file to him.

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

         Count IX - The Kemp Matter

         Antonio Kemp hired respondent to represent him in a criminal matter, and Mr. Kemp's mother paid respondent $3, 000 for the representation. In December 2013, following his sentencing, Mr. Kemp began efforts to obtain his client file from respondent. He and his family made numerous telephone calls and wrote letters to respondent, all of which were unanswered. Respondent finally returned Mr. Kemp's file at the formal hearing in this disciplinary proceeding.

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

         Count X - The Jasmine Matter

         In March 2013, Gill Jasmine hired respondent to file an application for post-conviction relief. Mr. Jasmine and his family paid respondent $600 of the $1, 000 fee. Respondent failed to timely file the application. As such, Mr. Jasmine filed the application himself. However, the application was dismissed as untimely.

         Respondent also failed to communicate with Mr. Jasmine during the representation, failing to visit Mr. Jasmine in prison as agreed and failing to answer or respond to repeated telephone calls from Mr. Jasmine. Additionally, respondent failed to refund the unearned fee, despite requests from Mr. Jasmine.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a), 1.3, 1.4, 1.5(a), 1.5(f)(5), 1.16(d), 8.4(a), and 8.4(c).

         Count XI - The Bell Matter

         On March 27, 2013, Bobby Bell hired respondent to represent him in two pending criminal matters in Bienville Parish. Mr. Bell's mother paid respondent $500 toward his $4, 000 fixed fee, with the balance due after Mr. Bell's release from prison. Respondent enrolled as Mr. Bell's counsel of record on May 7, 2013 but filed no further pleadings in either case. Mr. Bell did not see respondent again after his enrollment, and his letters to respondent went unanswered. After enrolling, respondent performed no services for Mr. Bell, even though his office sent Mr. Bell a letter indicating that an August 2013 court date was scheduled.

         In September 2013, Mr. Bell began filing pro se motions on his own behalf. On November 5, 2013, upon Mr. Bell's motion, the court removed respondent as counsel of record and appointed a public defender to represent Mr. Bell. Respondent failed to refund any of the $500 after his representation was terminated by the court, despite repeated requests by Mr. Bell.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a), 1.3, 1.4, 1.5(a), 1.5(f)(5), 8.4(a), and 8.4(c).

         Count XII - The Magee Matter

         In August 2012, Christopher Magee hired respondent to represent him in a child custody and visitation matter. Mr. Magee paid respondent $400 of the $500 fee. Respondent drafted a custody agreement and consent judgment but never filed same. Mr. Magee knew respondent was pursuing a resolution by consent and never instructed him to desist. Nevertheless, respondent never reviewed the consent documents with Mr. Magee and did not conclude the matter by consent. Respondent also failed to appear for a scheduled court date in the matter.

         Respondent admitted that he did not complete the matter and that Mr. Magee was owed a full refund. Yet, respondent did not refund any portion of the fee paid.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a), 1.3, 1.4, 1.5(a), 1.5(f)(5), 8.4(a), and 8.4(c).

         Count XIII - The Gay Matter

         In 2012, Jamar Gay hired respondent to represent him in a criminal matter. Mr. Gay's father paid respondent a $500 fixed fee. Thereafter, Mr. Gay was unable to contact respondent. Respondent drafted motions on Mr. Gay's behalf but never filed same. After Mr. Gay filed a disciplinary complaint against respondent, respondent refunded $400 of the $500 fee paid.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4 and 8.4(a).

         Count XIV - The Buchanan Matter In October 2009, Deborah Buchanan hired respondent to handle her husband's post-conviction relief, paying him a $1, 500 fee. On June 21, 2010, respondent filed a motion to reconsider Mr. Buchanan's sentence, which he admitted knowing was untimely. The court denied the motion on June 28, 2010. On February 14, 2011, respondent filed a motion for a new trial, which remains pending. Respondent never filed the application for post-conviction relief that he was hired to file. Respondent agreed to refund two-thirds of the fee paid but failed to do so.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.2(a), 1.4, 1.5(a), 1.5(f)(5), 3.3(a) (candor toward the tribunal), 8.4(a), and 8.4(c).

         Count XV - The Hickman Matter

         Respondent represented India Hickman in a criminal matter that concluded with Ms. Hickman's sentencing on March 28, 2011. Between August 2011 and July 2012, Ms. Hickman wrote to respondent five times to request her client file in order to pursue an appeal or post-conviction relief. Ms. Hickman never received her file.

         The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.16(d) and 8.4(a).

         Count XVI - The Green Matter

         On February 17, 2012, Miya Green hired respondent to represent her in a lessor/lessee lawsuit with which she had been served a couple of days earlier, paying him a $100 fee. Respondent gave Ms. Green a pauper form to complete and return to him. The next day, Ms. Green could not reach respondent by telephone, so she left the completed pauper form on the windshield of his car. Respondent admitted that he notarized the form even though he did not see Ms. Green sign it.

         Respondent failed to file an answer or otherwise respond to the lawsuit on Ms. Green's behalf. He also did not request an extension of time to do so, and on March 15, 2012, a preliminary default was entered against Ms. Green. In a subsequent meeting, respondent told Ms. Green he did not file anything on her behalf because he had a case in New Orleans. However, he told her he would contact opposing counsel to negotiate a resolution. Respondent never contacted opposing counsel. Eventually, a $17, 000 default judgment was confirmed against Ms. Green. When the opposing party ...


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