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In re Fontenot

Supreme Court of Louisiana

November 28, 2017

IN RE: TIMMY JAMES FONTENOT

         ATTORNEY DISCIPLINARY PROCEEDING

          PER CURIAM.

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

         UNDERLYING FACTS

         Francis and Ellen Ortego were involved in a motorcycle accident on June 26, 2006. The other driver involved in the accident, Calvin Guillory, was insured by Progressive Security Insurance Company ("Progressive") with policy limits of $100, 000. The Ortegos attempted to negotiate a settlement with Progressive, but they were unsuccessful as they were interested in receiving policy limits and Progressive's settlement offer was only $51, 000. They then retained respondent, a close family friend, to represent them in the matter. The Ortegos agreed to pay respondent a contingency fee of one-third of any settlement they received in excess of $51, 000. This agreement was not reduced to writing.

         In 2007, respondent filed a lawsuit on behalf of the Ortegos in the 13th Judicial District Court for the Parish of Evangeline against Mr. Guillory and Progressive. Lafayette attorney Ian Macdonald represented the defendants.

         Respondent negotiated a settlement with Progressive in the amount of $52, 500.[1] The Ortegos were not aware of the settlement and did not consent to it. On April 24, 2008, Mr. Macdonald sent respondent a settlement check along with a release and a joint motion to dismiss. Respondent signed his clients' names on the release and executed the motion to dismiss, then returned the documents to Mr. Macdonald. Respondent deposited the settlement check into his client trust account on May 6, 2008. Unbeknownst to the Ortegos, their lawsuit was dismissed on November 3, 2008.

         By late 2012 or early 2013, Mr. Ortego had begun to question respondent about the status of the case. Respondent falsely informed Mr. Ortego that Progressive was willing to settle the matter for the policy limits of $100, 000, but wanted to pay the settlement over a period of time in four payments. Mr. Ortego rejected a four-installment payment plan, but he did inform respondent that he was willing to accept one-half of the settlement as long as he was paid the remainder by the end of 2013. On February 28, 2013, respondent issued a check drawn on his client trust account payable to Mr. Ortego in the amount of $50, 000. Mr. Ortego asked whether he would be required to sign anything for the insurance company, and respondent told him that he would not. On December 20, 2013, respondent issued a trust account check in the amount of $33, 333.33 to Mr. Ortego and wrote "Full and Final Settlement" on the memo line of the check.[2]

         In January 2014, Mr. Ortego consulted Ville Platte attorney Kathy Fontenot-Meyers regarding the settlement. Ms. Fontenot-Meyers contacted Mr. Macdonald and requested copies of the settlement documents. After reviewing the documents, Ms. Fontenot-Meyers informed Mr. Macdonald that the settlement proceeds that were paid to the Ortegos were not disbursed until five years after the settlement. She also indicated that respondent told the Ortegos that Progressive was paying the settlement quarterly, and that the Ortegos could not confirm that the signatures on the settlement release were their own.

         In February 2014, Mr. Macdonald filed a complaint against respondent with the ODC. In December 2014, the ODC received a complaint from the Ortegos. In his response to the complaint, respondent stated that when the case settled in April 2008, he signed the settlement documents with the implied permission of the Ortegos. Respondent further admitted that he acted improperly and explained that at the time of the settlement, he was involved in a very bitter, highly contested and protracted divorce that also involved four children.

         After receiving respondent's response, the ODC requested a copy of his client trust account records and his client file. A review of this information indicates that respondent made at least four checks payable to "cash" from his trust account - two written in June 2010 and two written in November 2011. No documentation exists in the client file regarding the distribution of the funds.

         Respondent accepted a settlement of $52, 500 contrary to his clients' wishes and without their knowledge or consent. The Ortegos specifically were not aware that respondent received settlement proceeds from Mr. Macdonald in April 2008; they did not sign the release forms sent to respondent by Mr. Macdonald; and he dismissed their lawsuit without their consent. The ODC alleges that respondent's actions in this matter constitute a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(c) (a contingent fee agreement shall be in writing), 1.15(f) (cash withdrawals and checks made payable to "cash" are prohibited on client trust accounts), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).[3]

         DISCIPLINARY PROCEEDINGS

         In October 2015, the ODC filed formal charges against respondent as set forth above. Respondent, through counsel, answered the formal charges and generally admitted the factual allegations therein; however, he denied telling the Ortegos that Progressive would pay their settlement quarterly. Respondent also denied forging the Ortegos' signatures on the settlement documents. He admitted that he signed the Ortegos' names on these documents; however, he stated that he believed he had their authority and permission to do so. Respondent admitted that he violated Rules 1.3, 1.4, 1.5(c), and 1.15(f) of the Rules of Professional Conduct, but denied violating Rules 8.4(a), 8.4(b), and 8.4(c).[4]

         This matter then proceeded to a formal hearing on the merits conducted by the hearing committee on January 25, 2017. Both parties introduced documentary evidence. The ODC called the following witnesses to testify before the hearing committee: Kathy Fontenot-Meyers, Ian Macdonald, and Francis and Ellen Ortego. Respondent did not call any witnesses; however, he testified on his own behalf and on cross-examination by the ODC.

         Hearing Committee Report

         After reviewing the testimony and the evidence presented at the hearing, the hearing committee made the following findings of fact and law:

1. On February 19, 2014, the ODC received a complaint from Ian Macdonald. Mr. Macdonald represented Calvin Guillory and Progressive in a personal injury action brought by Francis and Ellen Ortego.
2. The Ortegos were involved in a June 26, 2006 motor vehicle accident, and respondent represented the Ortegos in the personal injury lawsuit.
3. The Ortegos attempted to negotiate a settlement with Progressive on their own.
4. Progressive offered the Ortegos a settlement of $51, 000, which the ...

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