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In re Giraud

Supreme Court of Louisiana

June 26, 2019

IN RE: PATRICK A. GIRAUD

          ATTORNEY DISCIPLINARY PROCEEDING

          PER CURIAM

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

         UNDERLYING FACTS

         On February 3, 2016, the ODC received an overdraft notice regarding a November 23, 2015 overdraft in respondent's client trust account. The overdraft resulted from respondent's attempt to pay a third-party medical provider for services rendered to a client who had no funds in the trust account.

         Thereafter, the ODC's forensic auditor conducted an audit of respondent's trust account for the period of August 1, 2015 through January 31, 2016. The audit revealed that respondent regularly paid non-client expenses and made cash withdrawals from his trust account; these non-client expenses and cash withdrawals totaled $33, 219.33 during the audit period. The audit also revealed that, on January 31, 2016, the trust account balance to satisfy pending client expenditures should have been at least $16, 345.62. Instead, the balance on that date was $3, 235.61, resulting in a deficit of $13, 110.01.

         On March 17, 2016, respondent informed the ODC that he was addicted to OxyContin, explaining that "the cost of the medication coupled with its effects on me overwhelmed my finances and I eventually began to take money from my Trust account." He also informed the ODC that he had contacted the Judges and Lawyers Assistance Program ("JLAP") and was preparing to enter inpatient treatment. He further informed the ODC that "I have also gone through my files and paid all outstanding debts that had been previously withheld from client settlements." This last statement was confirmed by the ODC's audit of respondent's trust account. Finally, during his October 26, 2016 sworn statement to the ODC, respondent admitted that he regularly used his trust account as a second operating account in 2015.

         On July 7, 2016, respondent completed a ninety-day inpatient treatment program at Palmetto Addiction Recovery Center. Palmetto's medical director diagnosed respondent with severe opioid use disorder, among other diagnoses. On July 12, 2016, respondent signed a five-year JLAP recovery agreement.

         DISCIPLINARY PROCEEDINGS

         In September 2017, 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), 1.15(f) (on client trust accounts, cash withdrawals and checks made payable to "Cash" are prohibited), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). In his answer, respondent admitted to violating Rules 1.15(a) and 1.15(f) but denied violating Rule 8.4(c). The matter then proceeded to a formal hearing on the merits.

         Hearing Committee Report

         After considering the evidence and testimony presented at the hearing, the hearing committee found that respondent used OxyContin daily from 2013 through early 2016. Respondent admitted that he did not have a prescription for the drug but would purchase it from others, including another attorney. He also admitted that he used his client trust account as an operating account. After being discharged from Palmetto, respondent voluntarily agreed to be randomly drug tested and has had 24 such drug tests. He also regularly attends Alcoholics Anonymous meetings and testified that he has not used drugs or alcohol since leaving Palmetto. Finally, respondent admitted that he violated Rules 1.15(a) and 1.15(f) of the Rules of Professional Conduct.

         Regarding the testimony of Buddy Stockwell, JLAP's executive director, the committee found that he described respondent as "so open" and someone who "badly wanted help." Mr. Stockwell also indicated that all of the random drug tests respondent has taken have been negative. Finally, Mr. Stockwell testified that he does not have any concerns about respondent relapsing.

         Regarding the testimony of Angelina Marcellino, the ODC's forensic auditor, the committee found that she concluded respondent had misused and converted funds in his trust account, the total being approximately $13, 000 but could have been as high as $33, 000. Ms. Marcellino also reviewed records indicating respondent had recently made restitution to clients and former clients.

         The committee found credible the testimony of respondent and the other witnesses. The committee also found that the evidence shows respondent improperly took funds from his trust account to support a drug habit. Following treatment, respondent has shown no signs of continued violation of the Rules of Professional Conduct. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

         Regarding mitigating factors, the committee noted that the ODC had stipulated to the following: absence of a prior disciplinary record, timely good faith effort to make restitution or to rectify the consequences of the misconduct, and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

         In light of the above findings, the committee recommended respondent be suspended from the practice of law for one year and one day, fully deferred, subject to the following conditions:

1. Respondent shall continue to be bound by the terms of his JLAP recovery agreement for at least two years;
2. Respondent shall obtain regular audits of his trust account, to be performed by a CPA approved by the ODC;
3. Respondent shall submit the findings of the audits on a quarterly basis to the ...

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