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In re Becnel

Supreme Court of Louisiana

January 30, 2019

In re DANIEL E. BECNEL, III

          ATTORNEY DISCIPLINARY PROCEEDING

          PER CURIAM

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

         PRIOR DISCIPLINARY HISTORY

         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 1991. In 2005, we accepted a joint petition for consent discipline in which respondent stipulated that he engaged in three instances of neglect of a legal matter, five instances of failure to communicate with a client, and two instances of failure to promptly remit funds to third parties. For this misconduct, he was suspended from the practice of law for one year and one day, fully deferred, subject to eighteen months of supervised probation with conditions, including the appointment of a probation monitor and respondent's attendance at Ethics School. In re: Becnel, 05-0831 (La. 4/29/05), 900 So.2d 836 ("Becnel I").

         In 2006, respondent accepted a representation involving post-conviction relief proceedings when he was not competent to handle the matter. After researching the issues, respondent determined his client had no non-frivolous claims to support post-conviction relief. Instead of informing his client of this determination and allowing him to decide the future course of the representation, respondent simply failed to file post-conviction pleadings in state court. He thereafter refused to refund any portion of the $5, 000 advance fee paid by his client, claiming he earned the entire amount.

         Subsequently, respondent's client provided him with arguments for a habeas petition. Respondent continued to believe the arguments were frivolous. Despite his belief, respondent did not terminate the representation and instruct the client to seek other counsel; instead, he filed the habeas petition anyway. Because he believed the arguments were frivolous, respondent deliberately failed to file the required supporting memorandum, thereby failing to comply with the federal court's rules and again neglecting his client's legal matter. When the magistrate judge recommended the client's habeas petition be dismissed, respondent made no effort to file an opposition on his client's behalf.

         After review, we determined that respondent's conduct was knowing, if not intentional. For his misconduct, respondent was suspended for one year, with three months deferred, followed by a one-year period of unsupervised probation, and ordered to make restitution of the unearned fee. In re: Becnel, 10-0884 (La. 10/19/10), 48 So.3d 1042 ("Becnel II").

         Finally, in 2012, we accepted a joint petition for consent discipline in which respondent stipulated that he engaged in a consensual sexual relationship with a client. For this misconduct, he was suspended from the practice of law for nine months. In re: Becnel, 12-2139 (La. 11/2/12), 99 So.3d 1005 ("Becnel III").

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

         UNDERLYING FACTS

         In May 2013, respondent's client, Tammy Rowell, received a partial settlement in her workers' compensation case. Because respondent was serving his suspension in Becnel III at this time, his wife and law partner, Kathryn Becnel, handled the distribution of the settlement funds. Ms. Becnel withheld $9, 574.50 from the settlement to satisfy a Social Security lien. After subtracting sums owed to a finance company and to the law firm for attorney's fees, Ms. Becnel paid Ms. Rowell her portion of the settlement funds on June 12, 2013.

         On August 2, 2013, respondent was reinstated to the practice of law. Shortly thereafter, Ms. Rowell received the final settlement in her workers' compensation case. Unaware that his wife had already withheld funds to satisfy the Social Security lien, respondent erroneously withheld another $7, 659.60 for this purpose.[1] After subtracting an additional sum for expenses, respondent paid Ms. Rowell her portion of the settlement funds on August 19, 2013.

         In August 2014, respondent wrote a check to himself drawn on his client trust account in the amount of $28, 000. Respondent believed this sum represented attorney's fees owed to him that had not been transferred from the trust account to his operating account; however, in actuality, $9, 574.50 of the withdrawal represented the funds belonging to Ms. Rowell and still held in the trust account.

         In November 2014, the ODC received notice from Chase Bank that respondent's client trust account was overdrawn. The overdraft was the result of a misplaced deposit and was quickly remedied by respondent. When respondent's bank records were reviewed as part of the investigation into the overdraft, the conversion of $9, 574.50 of Ms. Rowell's funds came to light. In August 2015, respondent wrote a check to Ms. Rowell in the amount of $10, 339.41, representing the amount owed to her with interest.

         Respondent has acknowledged that he converted Ms. Rowell's funds. He also acknowledged that he made several mathematical errors in connection with his handling of his client trust account, and failed to transfer his attorney's fees from the account as they were earned.

         DISCIPLINARY PROCEEDINGS

         In September 2016, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges and acknowledged that he negligently handled client funds.

         Joint ...


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