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In re Burkart

Supreme Court of Louisiana

November 5, 2018



          PER CURIAM

         This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Raymond Charles Burkart III, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.[1]


         The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 16-DB-006 and 17-DB-007. Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).

         The matters were then considered by separate hearing committees. No formal hearings were held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration in either matter.

         Following their consideration by the hearing committees, the matters were consolidated by order of the disciplinary board. The board then filed in this court a single recommendation of discipline encompassing both sets of formal charges.



         Count I

         On February 5, 2014, the ODC received notice from Chase Bank that a $431.83 check drawn on respondent's client trust account was returned unpaid for insufficient funds. The ODC then sent respondent a letter requesting an explanation for the returned check as well as copies of six months of bank records for the account; however, respondent did not comply with the request. As a result, a formal complaint was opened.

         Notification of the formal complaint was mailed to respondent in June 2014, again requesting the previously sought information. The correspondence was returned unclaimed. One month later, the ODC resent the notification to respondent. Respondent signed for the notice on August 2, 2014, but he did not respond to the request.

         In September 2014, the ODC requested that a subpoena and a subpoena duces tecum be served upon respondent for his sworn statement and for the production of his financial information. Respondent was served on September 16, 2014. The ODC finally received the requested information from respondent on September 24, 2014, although the response was dated March 14, 2014. As a result, the sworn statement was cancelled.

         In his response, respondent apologized and expressed regret for writing an NSF check, which he stated was unintentional. (The check represented a refund to a client of unearned fees and unused costs.) Respondent indicated that he notified the client of the violation and wired the amount to his client on February 10, 2014.

         Respondent also hired a CPA to audit his trust account. According to the CPA report, dated March 12, 2014, respondent's trust account had a negative balance of $3, 721.71. By way of explanation for the shortfall, respondent stated that he had assumed responsibility for handling the client trust account after his law partner, who had previously handled administrative duties, removed her name from the account.[2] Respondent admitted that he never realized the responsibility entailed in handling the administrative aspects of the firm. Respondent stated that in 2013, his professional duties to the local police union lodge became overwhelming and he lost his law partner, for all practical purposes. Respondent stated that he planned to repay the shortfall in his trust account, although he has yet to confirm that he has complied with these plans.

         In October 2014, the ODC's auditor asked respondent to identify numerous online transfers, cash withdrawals, and credit card payments from his trust account. Respondent failed to respond, and he was served with a subpoena duces tecum as well as a subpoena to appear for a sworn statement. On January 13, 2015, respondent appeared at the ODC for his sworn statement and produced additional copies of deposit and withdrawal slips, but the submitted information was not responsive to the ODC's request.

         The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), and 8.4(a) (violation of the Rules of Professional Conduct).

         Count II

         In November 2010, Davina Witte hired respondent's firm to represent her in a divorce, paying the firm a $2, 000 retainer. The last service provided was in July 2012. Between September 2014 and March 2015, Ms. Witte repeatedly asked respondent to return the unearned portion of the fee she had paid. After Ms. Witte threatened to file a disciplinary complaint, the firm's office assistant called Ms. Witte and informed her that she would be receiving a check. Thereafter, Ms. Witte continued to leave messages regarding the refund. In December 2014, respondent finally answered Ms. Witte's phone call, at which time he informed her that he would "look into the situation." Ms. Witte never heard anything further from respondent, even after she left several more messages.

         In March 2015, Ms. Witte filed a complaint against respondent and his law partner with the ODC. In response to the complaint, respondent's law partner advised that Ms. Witte began calling her in October 2014 to inquire about the refund. Because she was unaware of any balance due to Ms. Witte, she instructed her assistant to forward the inquiry to respondent. She also e-mailed respondent to ...

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