In Re: Charles L. Dirks, III , 224 So. 3d 346 ( 2017 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #036
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 29th day of June, 2017, are as follows:
BY PER CURIAM:
2017-B-0067 IN RE: CHARLES L. DIRKS, III
Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record and
the briefs filed by the parties, it is ordered that Charles L.
Dirks, III, Louisiana Bar Roll number 25650, be and he hereby is
suspended from the practice of law for sixty days. All costs and
expenses in the matter are assessed against respondent in
accordance with Supreme Court Rule XIX, § 10.1, with legal
interest to commence thirty days from the date of finality of
this court’s judgment until paid.
06/29/17
SUPREME COURT OF LOUISIANA
NO. 2017-B-0067
IN RE: CHARLES L. DIRKS, III
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Charles L. Dirks, III, an
attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
In 2009, Sharon Landrum retained respondent to represent her in a claim for
wrongful termination. Respondent initiated a complaint on Ms. Landrum’s behalf
with the Equal Employment Opportunity Commission (“EEOC”) and obtained a
right to sue letter from the EEOC.
During the discovery phase of the proceedings, in particular the depositions
of Ms. Landrum and her former manager, respondent learned that Ms. Landrum
had not provided him with all the facts surrounding the case. Respondent advised
Ms. Landrum that in his professional opinion, the case would likely be dismissed.
Ms. Landrum’s employer then filed a motion for summary judgment in the
case. Respondent did not file an opposition to the motion as he did not believe he
had any evidence to contradict the admissions Ms. Landrum had made during her
deposition. The motion was granted and the case was dismissed in August 2013.
For approximately one year after the court dismissed her case, Ms. Landrum
contacted respondent on numerous occasions to check on the status of her case. In
text messages to Ms. Landrum, respondent routinely advised that he had not heard
anything from the court about the case and indicated that he would check on it. In
August 2014, Ms. Landrum looked into the matter herself and learned that her case
had been dismissed a year earlier.
Ms. Landrum filed a complaint against respondent with the ODC. In his
October 2014 response to the complaint, respondent specifically stated:
I did not see the ruling issued on this matter. Ms.
Landrum asked me about the Motion for Summary
Judgment many times. I checked my electronic notices
each time and other times to see if I received a ruling. I
have checked my notices several more times and do not
see where I received an electronic notice, however, it is
my responsibility regardless.
In the course of the ODC’s investigation, respondent gave a sworn statement
in which he acknowledged that he had received the judgment dismissing Ms.
Landrum’s case “within a week, give or take” of when it was rendered by the
court. By way of explanation for not telling Ms. Landrum that her case had been
dismissed, respondent stated that he was upset with his client because she misled
him about the true facts of the case, and he just “didn’t want to deal with it.”
DISCIPLINARY PROCEEDINGS
In October 2015, the ODC filed formal charges against respondent, alleging
that his conduct as set forth above violated the following provisions of the Rules of
Professional Conduct: Rules 1.4 (failure to communicate with a client) and 8.4(c)
(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
Respondent answered the formal charges and admitted his misconduct. The matter
then proceeded to a hearing in mitigation, which was conducted by the hearing
committee in April 2016. Respondent was the only witness to testify before the
committee.
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Hearing Committee Report
After considering the testimony and evidence presented at the hearing, the
hearing committee made factual findings consistent with the underlying facts set
forth above. Based on these findings, the committee determined respondent
violated the Rules of Professional Conduct as alleged in the formal charges.
The committee found that respondent knowingly violated a duty owed to his
client, the legal system, and the legal profession. His conduct had the potential to
cause serious harm to his client. According to respondent, the information his
client had failed to disclose dealt a serious blow to her case, from which it was
highly doubtful that she could recover; however, by intentionally failing to inform
his client of the dismissal of her case in a timely manner, she was prevented from
seeking appellate review of the trial court’s decision. After considering the ABA’s
Standards for Imposing Lawyer Sanctions, the committee determined the baseline
sanction is suspension.
In aggravation, the committee found substantial experience in the practice of
law (admitted 1998). In mitigation, the committee found the absence of a prior
disciplinary record and remorse.
Under these circumstances, the committee recommended respondent be
suspended from the practice of law for sixty days. The committee further
recommended respondent be assessed with all costs of these proceedings.
The ODC filed an objection to the hearing committee’s report, arguing that
the recommended sanction was unduly lenient. The ODC later withdrew its
objection and concurred in the sanction recommended by the committee.
Disciplinary Board Recommendation
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After review, the disciplinary board determined that the hearing committee’s
factual findings are supported by the record and are not manifestly erroneous. The
board also determined respondent violated the Rules of Professional Conduct as
alleged in the formal charges.
The board determined respondent knowingly violated a duty owed to his
client. His misconduct did not cause actual harm, as it appears very unlikely that
his client had a viable cause of action. However, his misconduct deprived her of
the ability to appeal the court’s ruling, which created the potential for harm. After
considering the ABA’s Standards for Imposing Lawyer Sanctions, the board
determined the baseline sanction is suspension.
In aggravation, the board found substantial experience in the practice of law,
a dishonest or selfish motive, and the submission of false statements during the
disciplinary process. In mitigation, the board found the absence of a prior
disciplinary record and sincere remorse, noting that respondent candidly admitted
the misconduct and did not attempt to offer excuses for same.
After further considering this court’s prior jurisprudence involving similar
misconduct, the board recommended respondent be suspended from the practice of
law for sixty days. The board further recommended respondent be assessed with
all costs and expenses of this matter.
Respondent filed an objection to the disciplinary board’s recommendation.
Pursuant to Supreme Court Rule XIX, § 11(G)(1)(b), the case was scheduled on
our docket. Thereafter, the parties filed a joint motion seeking to waive oral
argument. We granted the motion and now consider the case based upon the
record and the briefs filed by the parties.
DISCUSSION
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Bar disciplinary matters fall within the original jurisdiction of this court. La.
Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an
independent review of the record to determine whether the alleged misconduct has
been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.
10/2/09), 18 So. 3d 57. While we are not bound in any way by the findings and
recommendations of the hearing committee and disciplinary board, we have held
the manifest error standard is applicable to the committee’s factual findings. See
In re: Caulfield, 96-1401 (La. 11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865
(La. 3/11/94), 633 So. 2d 150.
The record supports a finding that respondent failed to properly
communicate with his client regarding the status of her case and provided false
information to his client and to the ODC. Based on these facts, respondent has
violated the Rules of Professional Conduct as charged by the ODC.
Having found evidence of professional misconduct, we now turn to a
determination of the appropriate sanction for respondent’s actions. In determining
a sanction, we are mindful that disciplinary proceedings are designed to maintain
high standards of conduct, protect the public, preserve the integrity of the
profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513
So. 2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of
each case and the seriousness of the offenses involved considered in light of any
aggravating and mitigating circumstances. Louisiana State Bar Ass’n v.
Whittington, 459 So. 2d 520 (La. 1984).
Respondent knowingly violated duties owed to his client and the legal
profession, causing the potential for serious harm. The baseline sanction for this
type of misconduct is suspension. The aggravating and mitigating factors found by
the disciplinary board are supported by the record.
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A case which provides insight into the appropriate discipline for making
false statements is In re: Bordelon, 04-0759 (La. 1/7/05), 894 So. 2d 315. In that
case, we imposed a sixty-day suspension upon an attorney whose sole misconduct
consisted of his false statements to the ODC in connection with a disciplinary
matter. As to respondent’s failure to inform his client about the dismissal of her
case, we find that In re: Bruscato, 99-0287 (La. 6/4/99), 743 So. 2d 645, is
instructive. In that case, we imposed a sixty-day suspension upon an attorney who
failed to file a client’s personal injury suit before the prescriptive deadline, then
filed a motion to dismiss the suit without prejudice without informing his client of
the prescription issue.
In the instant matter, respondent’s misconduct caused his client to lose her
right to appeal, although it did not cause her to lose her right of action. Because
the merits of her matter were at least initially considered by a court, the harm is
arguably not as great as was seen in Bruscato. However, respondent was also
dishonest with his client for nearly a year regarding the status of her case and was
dishonest with the ODC in his response to the complaint regarding the time frame
in which he learned of the dismissal. Under the circumstances, we agree that an
actual period of suspension is warranted.
Considering our decisions in Bordelon and Bruscato, we agree that the sixty-
day suspension recommended by the hearing committee and the disciplinary board
is appropriate. Accordingly, we will suspend respondent from the practice of law
for sixty days.
DECREE
Upon review of the findings and recommendations of the hearing committee
and disciplinary board, and considering the record and the briefs filed by the
parties, it is ordered that Charles L. Dirks, III, Louisiana Bar Roll number 25650,
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be and he hereby is suspended from the practice of law for sixty days. All costs
and expenses in the matter are assessed against respondent in accordance with
Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from
the date of finality of this court’s judgment until paid.
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