In re Brown

Citations: 189 So. 3d 387; 2016 WL 2337887; 2016 La. LEXIS 1043Docket: No. 2016-B-0396

Court: Supreme Court of Louisiana; May 2, 2016; Louisiana; State Supreme Court

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Kerry Dion Brown, an attorney licensed in Louisiana, is facing disciplinary charges from the Office of Disciplinary Counsel (ODC) while under interim suspension due to threats of public harm. The charges include two counts of misconduct:

Count I involves Brown's representation of an elderly client, Evangeline Johnson, in a personal injury case. After settling her claim in April 2010 and depositing $99,235.14 into his client trust account, he failed to disburse any funds to Johnson or to pay third-party medical providers and a mediator. His trust account subsequently fell into a negative balance. In October 2013, Brown pleaded guilty to multiple criminal offenses, including forgery and theft from an aged person, receiving a five-year suspended sentence and probation, along with an order to pay restitution of $58,041.09 to Johnson. His actions allegedly violated Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct, which pertain to criminal conduct and dishonesty.

Count II details additional financial misconduct, including a returned check due to insufficient funds in his trust account and subsequent overdrafts. Brown issued a $4,200 check for client medical expenses that could not be covered at the time of presentation, resulting in another overdraft. He also converted funds owed to Premier Medical Rehab, which had liens on settlements for seven personal injury clients, failing to pay them after settlements were reached. Additionally, he issued a check to his nephew, referencing a settlement fee, although the nephew was not an attorney. The ODC's requests for Brown's trust account records went unanswered.

Respondent appeared for a sworn statement in February 2011 but provided only partial statements regarding his trust account. The Office of Disciplinary Counsel (ODC) subpoenaed bank records to complete its investigation. Allegations against the respondent included violations of several Rules of Professional Conduct: Rules 1.15(a) (safekeeping client property), 1.15(d) (timely remittance of funds), 5.4(a) (sharing fees with non-lawyers), 8.1(c) (failure to cooperate with ODC), and 8.4(c) (conduct involving dishonesty).

In Count III, respondent represented multiple clients in personal injury claims and contracted with OpenSided MRI of New Orleans (OSM) to pay for medical services upon receiving settlement funds. Despite settling the cases, he failed to pay OSM, and his trust account balance fell below necessary amounts, indicating conversion of client funds. He also did not appear for a sworn statement in the Johnson case or provide settlement statements for the Firmin case upon ODC's request.

Count IV involved respondent representing additional clients whose medical tests were financed by Diagnostic Management Affiliates (DMA). He also settled these cases but failed to pay DMA and had an overdrawn trust account, which suggested conversion of client funds. He did not provide requested settlement statements to the ODC.

In Count V, respondent contracted mediator Joseph Murray for the Brasseaux case but failed to pay for services after settling, despite multiple payment requests. He converted funds from the settlement and did not respond to disciplinary notices.

Count VI detailed a case from 2008 where Raymond Frank, Sr. retained respondent but complained of a lack of communication and diligence. Respondent did not respond to the complaint or return unearned fees despite requests. The ODC subpoenaed him for documents without success.

The ODC has alleged multiple violations of the Rules of Professional Conduct by the respondent, including Rules 1.3 (failure to act diligently), 1.4 (failure to communicate), 1.5(f) (failure to refund unearned fees), 8.1(c) (failure to respond to disciplinary inquiries), and 8.4(c) (engaging in conduct involving dishonesty). 

Count VIII details that in December 2010, Jeanette Toney paid $2,000 for divorce representation, but the respondent only wrote two letters and failed to prevent a default judgment against her. Toney was unaware of her case's status until served with a contempt rule, leading her to hire another attorney and file a disciplinary complaint against the respondent, who did not respond.

Count IX involves Delano Burton, who paid $950 for representation in a child support case that did not proceed. Respondent failed to refund Burton despite requests, did not provide an accounting, and claimed the fee was earned without justification. The disciplinary notice sent to him went unclaimed.

Count X concerns Monique J. Campbell, who hired the respondent for a personal injury matter that settled, but the respondent failed to pay medical bills from the settlement. Disciplinary notices sent to him were returned unclaimed.

Count XI involves Geraldine B. Watkins, who paid $1,000 for succession representation but received no communication or work from the respondent, who also failed to provide an accounting despite requests. The disciplinary notice was delivered, but he did not respond.

Count XII relates to Stephen R. Lane, who hired the respondent for a personal injury case. The respondent settled the case without authorization from Lane, cashed a settlement check by forging Lane's signature, and failed to pay associated medical bills. Lane’s attempts to contact the respondent were ignored.

Notice of a disciplinary complaint was sent by the Office of Disciplinary Counsel (ODC) to the respondent’s registered bar addresses. The notice to the primary address was returned as undeliverable, while the notice to the secondary address was marked unclaimed. The ODC asserted that the respondent violated several provisions of the Rules of Professional Conduct: Rules 1.4, 1.15(a), 8.1(c), and 8.4(c). In May 2015, formal charges were filed against the respondent, who did not respond, resulting in the factual allegations being deemed admitted under Supreme Court Rule XIX, 11(E)(3). 

A hearing committee reviewed the ODC’s submissions and confirmed the allegations, concluding that the respondent breached his duties to clients by failing to safeguard entrusted funds and provide competent legal services. Additionally, he neglected obligations to third-party medical providers and engaged in criminal conduct, failing to cooperate with the ODC. Specific instances included converting funds for personal use and allowing a client’s husband to secure a default judgment without her knowledge. 

The committee identified disbarment as the appropriate sanction, citing a pattern of misconduct, multiple offenses, and dishonest motives, though the absence of a prior disciplinary record was a mitigating factor. The committee recommended permanent disbarment, full restitution to victims, and assessment of costs related to the proceedings. The disciplinary board upheld the hearing committee’s findings and recommendations, noting no objections were filed by either party.

The board concluded that the respondent violated the Rules of Professional Conduct, confirming intentional misconduct that harmed multiple clients and third-party providers. Key violations included inadequate communication, failure to return unearned fees and settlement funds, and conversion of client funds for personal use. This misconduct led to a criminal conviction, demonstrating dishonesty and deceit that undermines his fitness to practice law. The board identified a baseline sanction of disbarment, citing aggravating factors such as a pattern of misconduct, multiple offenses, a selfish motive, refusal to acknowledge wrongdoing, significant legal experience, indifference to restitution, and illegal acts, while noting the sole mitigating factor was the absence of a prior disciplinary record. The recommendation was for permanent disbarment, restitution to clients and third parties, and payment of the costs of the proceedings. The court, acting within its original jurisdiction, emphasized that in cases where a lawyer does not respond to formal charges, those allegations are deemed admitted, thus relieving the Office of Disciplinary Counsel (ODC) of further proof for the factual claims. However, legal conclusions drawn from these facts must be supported by additional evidence if not clearly established. The findings indicated serious neglect of legal duties, failure to communicate, financial misconduct, engagement in criminal activities, and non-cooperation with the ODC. The overall disciplinary measures are intended to uphold conduct standards, protect the public, and deter future violations.

The baseline sanction for the respondent's misconduct is disbarment, supported by both aggravating and mitigating factors identified by the disciplinary board. Permanent disbarment is justified under Guideline 1 due to repeated instances of intentional conversion of client funds resulting in significant harm. The respondent improperly managed settlement funds, failing to remit them to clients or pay third parties. He was compensated for legal work that he either did not complete or start, retaining fees that should have been refunded. His actions led to a criminal conviction for forgery and theft in relation to one client. To protect the public, permanent disbarment is mandated, and the disciplinary board's recommendation will be adopted. The respondent, Kerry Dion Brown (Louisiana Bar Roll number 27189), is disbarred, his name is to be removed from the attorney roll, and his law license revoked. He is permanently barred from re-admission to the practice of law in Louisiana and ordered to make restitution to affected clients and third parties. The costs of the proceedings are to be borne by the respondent, accruing legal interest from thirty days post-judgment. Outstanding medical service debts owed by the respondent to various parties are detailed, and a correction regarding a non-existent charge was noted by the ODC.