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In re Evans

Supreme Court of Louisiana

October 8, 2018



          PER CURIAM

         This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Mitchel M. Evans II, an attorney licensed to practice law in Louisiana, but currently suspended from practice.


         Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1989. In 1997, respondent received an admonition for taking a recorded statement from a criminal defendant despite the defendant's attorney prohibiting same.

         In 2016, we considered allegations against respondent of misconduct that occurred between 2005 and 2012. We ultimately determined that respondent neglected numerous legal matters, failed to communicate with numerous clients, failed to provide competent representation, failed to refund unearned fees, failed to provide accountings to clients, failed to reduce contingency fee agreements to writing, failed to properly supervise non-lawyer assistants, failed to keep one client's information confidential, and failed to cooperate with the ODC in two investigations. For this misconduct, we suspended respondent from the practice of law for three years, with two years deferred, followed by two years of supervised probation with conditions. In re: Evans, 16-1115 (La. 12/6/16), 218 So.3d 1015 ("Evans I"). Respondent has not sought reinstatement from this suspension; thus, he remains suspended from the practice of law.

         Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.


         By way of background, the mother of James McCoy's child filed a custody case in Louisiana in an attempt to obtain sole custody of the child. The child's mother also moved for a restraining order against James' wife, Rosalba.

         In September 2015, the McCoys hired respondent to represent them in the case, paying him $1, 200 for the representation. Specifically, the McCoys wanted respondent to get the case dismissed, claiming Louisiana lacked jurisdiction over the matter. The McCoys also wanted the restraining order dissolved because it jeopardized Rosalba's security clearance with the military. Furthermore, as both James and Rosalba were in the military and stationed outside of Louisiana at the time, they discussed with respondent appearing via SKYPE at the upcoming hearing to dismiss the case.

         Respondent appeared in court on the McCoys' behalf on September 10, 2015 and entered into a consent judgment with opposing counsel. Despite the McCoys' wishes, the consent judgment gave sole custody of the child to the mother and maintained the restraining order. Even though respondent consented to this judgment, he apparently informed the McCoys that the judge ordered the terms of the judgment. It was not until the McCoys hired an attorney in Florida, where they were living at the time, that they learned respondent had consented to the terms of the judgment.

         The McCoys provided the ODC with copies of e-mails between themselves and respondent, in which they clearly stated their wishes regarding the scope of the representation. Respondent admitted that he agreed to the consent judgment without speaking to the McCoys but alleged his actions were appropriate since the McCoys waived their appearance at the hearing. The McCoys disputed waiving their appearance and provided documentation indicating they would appear at the hearing via SKYPE. The McCoys also indicated they were happy to drive to Louisiana, if necessary, but respondent assured them they could appear via SKYPE.

         The McCoys requested a refund of the unearned portion of the fee they paid respondent. However, respondent refused to refund any portion of the fee. Because of the consent judgment respondent entered into without the McCoys' knowledge or permission, Rosalba has lost her security clearance with the military and James has been denied visitation he previously enjoyed with his child.

         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) (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(f)(5) (failure to refund an unearned fee), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct ...

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