Miss. Bar v. Malone

364 So.3d 607

The MISSISSIPPI BAR v. Robert W. MALONE

NO. 2021-BD-00467-SCT

Supreme Court of Mississippi.

April 7, 2022

ATTORNEYS FOR COMPLAINANT: ADAM BRADLEY KILGORE, Jackson, MELISSA SELMAN SCOTT

ATTORNEY FOR RESPONDENT: ROBERT W. MALONE (PRO SE)

EN BANC.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. On November 4, 2020, the Supreme Court of Louisiana suspended Robert W. Malone from the practice of law for two years. On April 30, 2021, the Mississippi Bar filed a formal complaint asking this Court to discipline Malone for his misconduct. In addition, the Bar asks that this Court order Malone to pay the costs and expenses incurred from the filing of this complaint.

STATEMENT OF THE FACTS

¶2. Malone is a resident of Louisiana. He became a member of the Mississippi Bar on September 26, 2000. Malone is licensed also in Louisiana but is ineligible to practice law in that state due to his failure to comply with Louisiana's licensure requirements. See In re Malone , 303 So. 3d 614 (La. 2020) (mem.).

¶3. In June 2018, Louisiana's Office of Disciplinary Counsel (ODC) filed formal charges against Malone for several instances of misconduct that had occurred between August 2013 and November 2017. Id. at 614-15. The first incident occurred in August 2013 when Sean Rachal hired Malone to represent him in a post-conviction relief proceeding. Id. at 614. Rachal said that Malone, after being paid a $5,000 flat fee, consistently ignored his warnings about an approaching deadline, which resulted in the untimely filing of Rachal's application for post-conviction relief. Id. "Furthermore, [Malone] ignored two letters Mr. Rachal sent him in late 2014 in which Mr. Rachal requested a copy of his file." Id. Rachal filed a complaint with ODC against Malone in November 2015. Id. After several failed attempts, Malone was served properly with notice of the complaint. Id. Malone indicated to the ODC that he would provide them a response, but none was forthcoming. Id.

¶4. The second incident also occurred in 2014 when Eric Green hired Malone to "represent him in a criminal matter." Id. Green saw Malone "for the first and only time in order to pay the fee." Id. In March 2016, Green filed a disciplinary complaint against Malone because he had not heard from Malone "for more than eighteen months" and he wanted to terminate Malone's services and be refunded the unearned portion of the fee. Id. at 614-15. After Malone was served with the complaint, he indicated to the ODC he would provide a response, but again he failed to do so. Id. at 615.

¶5. The last incident involved Malone's representation of Jon Welch in a criminal matter that was terminated due to Malone's lack of communication with his client. Id. In addition, the attorney hired to replace Malone, Walter M. Sanchez, made numerous attempts to "request an accounting and a refund of the unearned portion of the $7,000 fee." Id. But Malone did not respond. Id. Malone failed also to turn over to replacement counsel discovery material Malone had received from the prosecutor, which resulted in the rescheduling of Welch's trial. Id. Sanchez filed a complaint with the ODC in 2017. Id. After several unsuccessful attempts, Malone was served with the complaint, to which he did not respond. Id.

¶6. In each instance, the ODC alleged that Malone had violated the following Rules of Professional Conduct: Rule 1.3 (failure to act with reasonable diligence and promptness in representing a client), Rule 1.4 (failure to communicate with a client), Rule 1.16 (obligations upon termination of the representation), Rule 8.1(c) (failure to cooperate with the ODC in its investigation), and Rule 8.4(a) (violation of the Rules of Professional Conduct). Id. at 614-15.

¶7. Because Malone had failed to answer the formal charges levied by the ODC, "the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence[.]" Id. at 615. There was no formal hearing, but each party "[was] given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions." Id. "In his submission on sanctions, [Malone] only addressed the Rachal matter[.]" Id. Malone explained that Rachal's application for post-conviction relief was deemed untimely because the clerk of the trial court had informed him that he did not have to pay the tax transmission fee, which had made the application untimely. Id. Malone explained also that when Rachal's family "texted him with threats, he stopped working on [Rachal's] case and reported the threats to the police." Id. He also told the hearing committee that, at the time of filing, "he currently [was] out of the country with his family on his wife's military permanent change of station tour." Id.

¶8. "[T]he hearing committee noted that the factual allegations set forth in the formal charges were deemed admitted[,]" and "determined [Malone] violated Rules 1.3, 1.4, 1.5, 1.16, 8.1(c), and 8.4(a) of the Rules of Professional Conduct." Id. at 616. The committee determined that Malone had "knowingly violated duties owed to his clients" and his "conduct caused potential harm as follows":

(1) he ignored two letters from Mr. Rachal in which Mr. Rachal requested a copy of his file; (2) he accepted a $500 fee from Mr. Green and then neglected Mr. Green's legal matter; (3) he failed to provide Mr. Sanchez with an accounting and refund of unearned fees paid on behalf of Mr. Welch; and (4) he failed to provide Mr. Sanchez with Mr. Welch's file.

Id. The committee found no mitigating factors present, but it did find several aggravating factors: "dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 2002)[,]" plus Malone's "failure to cooperate with the ODC's investigations." Id. Therefore, the committee recommended a one year and one day suspension with Malone required to pay any restitution owed his former clients. Id. One committee member recommended a two-year suspension due to the aggravating factors. Id. "Neither [Malone] nor the ODC filed an objection to the committee's report." Id. But Malone did "file a brief prior to oral argument before a panel of the disciplinary board." Id. "In his brief, [he] acknowledged he made mistakes in his handling of his clients’ legal matters and failed to timely resolve the matters." Id. "However, in mitigation, he offered that his twenty-three years of service in the Louisiana Army National Guard left him with post-traumatic stress disorder, depression, and anxiety." Id. Malone explained that his mental health issues have caused him not to work in approximately a year, "but he is now taking medication to treat his depression and anxiety." Id. Additionally, Malone's wife, a member of the United States Army, was ordered to active duty in October 2018 and was stationed in Belize. Id. "[Malone] and his four children moved to Belize the following month, and he has not had access to his law office files since." Id.

¶9. Addressing the Rachal matter, Malone admitted that he had not handled the threats from Rachal's family properly. Id. But Malone "claimed he told Mr. Rachal's family they could come to his office to retrieve Mr. Rachal's file, but they never did so." Id. "Regarding the Green matter, [Malone] indicated he was only hired to file a motion for modification of sentence, which he did and which was granted." Id. at 616-17. "However, Mr. Green was upset it took the Louisiana Department of Corrections longer than he wanted to recalculate his time and release him." Id. at 617. As for the Sanchez/Welch matter, Malone explained that "he made numerous out-of-town trips related to Mr. Welch's representation and was actively working with multiple jurisdictions to limit Mr. Welch's exposure." Id. Regarding the discovery documents, Malone claimed he was not aware of any; however, when he was closing his office, he discovered the documents underneath his receptionist's desk. Id.

¶10. After review, the disciplinary board determined that Malone had violated Rules 1.3, 1.4, 1.5, 8.1(c), 8.4(a) of the Rules of Professional Conduct. Id. Unlike the hearing committee, the disciplinary board

determined [that] the ODC failed to prove by clear and convincing evidence that [Malone] violated Rule 1.16 because the deemed-admitted facts do not allege [Malone] ever withdrew formally from the three representations, reasoning that [Malone] completed the representation of Mr. Rachal, although unsuccessfully, and that both Mr. Green and Mr. Welch terminated [Malone's] services.

Id. The disciplinary board determined that Malone "knowingly violated duties owed to his clients and the legal profession, and his conduct caused actual harm to his clients." Id. Also, "[t]he board agreed with the committee's determination of aggravating factors and found the presence of the additional aggravating factors of a prior disciplinary record (a 2012 admonition for failing to cooperate with the ODC in an investigation) and vulnerability of the victims." Id. at 618. Therefore, the disciplinary board recommended suspending Malone for two years and requiring him pay restitution. Id.

¶11. The Supreme Court of Louisiana found that

The evidence in the record of this deemed admitted matter supports a finding that [Malone] neglected legal matters, failed to communicate with clients, failed to return client files upon request, failed to provide accountings and refunds of unearned fees upon request, and failed to cooperate with the ODC in its investigations. This misconduct is a violation of the Rules of Professional Conduct as found by the disciplinary board except with respect to Rule 1.16. We disagree with the board and instead find [Malone] violated Rule 1.16 when he failed to return client files upon request and failed to account for and refund unearned fees upon termination of the

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