In Re: Andres Humberto Aguilar

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #059

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 6th day of December, 2017, are as follows:

PER CURIAM:

2017-B -1116 IN RE: ANDRES HUMBERTO AGUILAR

Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record,
briefs, and oral argument, it is ordered that Andres Humberto
Aguilar, Louisiana Bar Roll number 34176, be and he hereby is
suspended from the practice of law for a period of one year and
one day, with all but nine months deferred. This suspension shall
be retroactive to August 2, 2017, the date of respondent’s
interim suspension. Following the active portion of the
suspension, respondent shall be placed on unsupervised probation
for two years, subject to the conditions set forth in this
opinion. The probationary period shall commence from the date
respondent and the ODC execute a formal probation plan. Any
failure of respondent to comply with the conditions of probation,
or any misconduct during the probationary period, may be grounds
for making the deferred portion of the suspension executory, or
imposing additional discipline, as appropriate. 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.
12/06/17

SUPREME COURT OF LOUISIANA

NO. 2017-B-1116

IN RE: ANDRES HUMBERTO AGUILAR

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of

Disciplinary Counsel (“ODC”) against respondent, Andres Humberto Aguilar, an

attorney licensed to practice law in Louisiana but currently on interim suspension

pursuant to a joint petition of the parties filed in July 2017. In re: Aguilar, 17-1320

(La. 8/2/17), 222 So. 3d 706.

UNDERLYING FACTS

The Charbonneau Matter

The following facts are not in dispute, having been stipulated to by the parties.

In February 2013, respondent was hired through the Pro Bono Project to

handle Shawn Charbonneau’s divorce. In July 2014, Mr. Charbonneau checked the

court records and discovered that respondent had not filed any pleadings on his

behalf.

Soon thereafter, Mr. Charbonneau filed a disciplinary complaint against

respondent. The ODC sent respondent notice of the complaint via certified mail.

All letters sent to respondent were returned unclaimed. The ODC attempted to

contact respondent via telephone and e-mail, but respondent failed to respond to

these attempts.
 Respondent relocated to Texas but failed to update his address with the

Louisiana State Bar Association (“LSBA”). The ODC was able to serve respondent

with a copy of the complaint at his new address in Texas on February 7, 2015.

The Grant Matter

The following facts are not in dispute, having been stipulated to by the parties.

Kelly Grant was injured in an automobile accident, and Terry Williams hired

respondent to handle the personal injury case on Ms. Grant’s behalf. Respondent

paid Mr. Williams $500 in cash for the referral of Ms. Grant and another client. Ms.

Grant met respondent for an initial consultation at a café in Shreveport. Once Ms.

Grant completed medical treatment for her injuries, respondent failed to

communicate with her about the status of her case; he failed to answer her telephone

calls and did not place any telephone calls to her.

In April 2014, Ms. Grant filed a disciplinary complaint against respondent.

The ODC sent respondent notice of the complaint via certified mail. All letters sent

to respondent were returned unclaimed. The ODC attempted to contact respondent

via telephone and e-mail, but respondent failed to respond to these attempts.

Respondent relocated to Texas but failed to update his address with the LSBA.

The ODC was able to serve respondent with a copy of the complaint at his new

address in Texas on February 7, 2015.

DISCIPLINARY PROCEEDINGS

In December 2015, the ODC filed formal charges against respondent. In June

2016, the ODC filed amended formal charges against respondent. In the formal

charges and amended formal charges, the ODC alleged that respondent’s conduct,

as set forth above, violated the following provisions of the Rules of Professional

Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in

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representing a client), 1.4 (failure to communicate with a client), 1.16 (declining or

terminating representation), 7.4(a) (solicitation), 8.1(c) (failure to cooperate with the

ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct),

8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty,

trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation).

Respondent, through counsel, answered the formal charges. He did not file

an answer to the amended formal charges. However, prior to a formal hearing in

this matter, respondent and the ODC filed a joint stipulation of facts, wherein

respondent admitted to the facts as set forth above. The parties further stipulated

that the mitigating factor of inexperience in the practice of law (admitted 2011) is

present.

Formal Hearing

The hearing committee conducted a hearing in July 2016. Both respondent

and the ODC introduced documentary evidence. Respondent called one witness to

testify before the committee. He also testified on his own behalf and on cross-

examination by the ODC.

RESPONDENT’S TESTIMONY

Respondent testified that his first job out of law school was with the Blanchard

Walker law firm in Shreveport. When he first started there, he did really well. After

a time, he could no longer get his work done, and he was fired from Blanchard

Walker. He then decided to be a solo practitioner.

Regarding Mr. Charbonneau’s legal matter, respondent testified that he told

Mr. Charbonneau he was ready to file the divorce pleadings but needed a pauper

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affidavit from Mr. Charbonneau first so they could file without paying court costs.

He denied telling Mr. Charbonneau that he had filed the divorce pleadings.

Regarding the Grant matter, respondent testified that an attorney friend of his

knew Mr. Williams and introduced respondent to Mr. Williams, who indicated he

worked at ChiroCare. Mr. Williams referred Ms. Grant’s case to him along with

another potential client’s case. Respondent did not end up taking the other potential

client’s case. Respondent met with Ms. Grant once and then did not do anything

more on the case. Ms. Grant called him a few times, but he did not return those calls.

When Mr. Williams first referred the cases to respondent, there was no

discussion about respondent paying Mr. Williams for the referrals. However, about

a week later, Mr. Williams called respondent and said that respondent owed him

$500 for the referrals. Mr. Williams’ request was so unexpected that respondent

“panicked a little bit and froze up.” He then met Mr. Williams in a McDonald’s

parking lot and paid him $500 in cash. However, it was never part of his business

plan as a solo practitioner to pay for referrals.

Respondent also indicated that he knew he was receiving certified mail notices

and telephone calls from the ODC between July 2014 and February 2015, but he did

not know what they were about. At the time, he had a lot of responsibilities he was

not taking care of. He was not able to bring himself to take care of them because he

had built up a “wall of distractions.”

About two months after starting his solo practice, respondent got a job with

TestMasters teaching the LSAT prep course. He is still currently employed by

TestMasters and lived in Texas from the summer of 2013 until April 2016 before

moving back to Shreveport.

When he was fired from Blanchard Walker in 2013, respondent went to a

psychiatrist. He was diagnosed with ADHD and prescribed Concerta. This

medication turned out to be counter-productive because respondent actually suffers

4
from obsessive compulsive disorder (“OCD”). Respondent was taking Concerta

while he was representing Mr. Charbonneau and Ms. Grant. He has since stopped

taking Concerta and now sees a therapist once a week as treatment for OCD.

Respondent also plans to see a psychiatrist for treatment with medication.1

CLAUDIA HARRIS’ TESTIMONY

Ms. Harris, a licensed social worker, testified that she diagnosed respondent

with OCD and has been treating him for same since May 2016. She described OCD

as an anxiety-driven disorder that is characterized by obsessions, which are thoughts

that are related to uncertainty, and compulsions, which are behaviors that may

address those anxious thoughts. Respondent’s compulsive behavior is avoidance.

She believes medication will help respondent and encouraged him to see a

psychiatrist. However, she is working with him to limit his distractions, live with

his uncertainty, and to tolerate his anxiety through cognitive behavioral therapy. She

also testified that respondent’s OCD does not make him unable to perform the duties

of an attorney.

1
Respondent saw Elizabeth F. Kieff, MD, a psychiatrist in Chicago, Illinois on July 27, 2016. Dr.
Kieff confirmed respondent’s OCD diagnosis, stating that, “[h]e, like many individuals with OCD,
has the propensity to engage in compulsions, avoidance and distraction as means to self-soothe
and manage the anxiety associated with distressing obsessions (“intrusive thoughts”). This has
meant at times avoiding responsibilities that, at other moments in his life, he has been able to
manage.” She indicated that she is working with him to find local providers for both therapy and
psychiatry.

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 Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the

hearing committee accepted the joint stipulations agreed to by the parties. The

committee also made additional factual findings as follows:

In the Charbonneau matter, respondent communicated to Mr. Charbonneau in

June 2014 that he had filed the divorce petition. However, a review of the court

records reflected that respondent had not filed any paperwork for the divorce.

Additionally, the evidence shows that respondent failed to communicate with Mr.

Charbonneau. In the Grant matter, the stipulated facts and testimony revealed that

respondent obtained a personal injury case through a “runner” to whom he paid a

$500 referral fee. Respondent met with Ms. Grant, and the client sought medical

treatment at ChiroCare. Once Ms. Grant completed the treatment, respondent failed

to communicate with her regarding the status of the case and ceased answering

telephone calls from both Ms. Grant and ChiroCare. Based on these facts, the

committee determined that respondent violated the Rules of Professional Conduct

as alleged in the formal charges and amended formal charges.

The committee determined that respondent knowingly violated duties owed

to his clients, the public, the legal system, and the legal profession. Respondent’s

conduct caused actual harm to his clients; Mr. Charbonneau’s divorce petition was

never filed, and Ms. Grant’s personal injury claim prescribed. His conduct in failing

to complete a matter he accepted through the Pro Bono Project and his interaction

with a “runner” for personal injury matters were betrayals of the public’s trust in the

legal system. After considering the ABA’s Standards for Imposing Lawyer

Sanctions, the committee determined the baseline sanction is suspension.

In aggravation, the committee found the following: a dishonest or selfish

motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the

disciplinary proceeding by intentionally failing to comply with the rules or orders of

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the disciplinary agency, vulnerability of the victim, and indifference to making

restitution. In mitigation, the committee found the absence of a prior disciplinary

record, personal or emotional problems (respondent suffers from OCD),

inexperience in the practice of law, and remorse.

In light of the above findings, the committee recommended respondent be

suspended from the practice of law for one year, with all but nine months deferred,

subject to the following conditions: (1) he make any restitution deemed necessary,

(2) he continue counseling and/or therapy for OCD, and (3) he attend ten additional

continuing legal education hours in the area of law office management.

Both respondent and the ODC filed objections to the committee’s

recommendation. Respondent argued that the sanction is too harsh, while the ODC

argued that the sanction is too lenient.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s

factual findings are supported by the record and are not manifestly erroneous.

According to the board, respondent neglected his clients’ legal matters and failed to

communicate with them. He admitted to paying a runner $500 for two personal

injury clients, one of whom was Ms. Grant, solicited following an automobile

accident. Respondent agreed to represent Ms. Grant and signed a contingency fee

agreement with her. Thereafter, he did little work on Ms. Grant’s legal matter. After

Ms. Grant completed treatment at ChiroCare, the healthcare provider to which the

runner had referred her, respondent did not communicate with Ms. Grant and

allowed her claim to prescribe. He did not provide Ms. Grant with information

pertaining to his malpractice coverage or carrier or otherwise make restitution to her.

While the record fails to establish with any certainty the value of Ms. Grant’s claim

(if any) and raises questions about her medical treatment because it was directed by

7
the runner, the board found that respondent must make restitution to Ms. Grant as

appropriate. Furthermore, respondent initially failed to cooperate with the ODC in

its investigation of the disciplinary complaints. However, once he was served with

the formal charges, he filed a response, made himself available to be deposed by the

ODC, entered into a joint stipulation with the ODC, and has otherwise been

cooperative. Based on these facts, the board determined that the committee correctly

concluded respondent violated Rules 1.3, 1.4, 1.16, 7.4(a), 8.1(c), 8.4(a), 8.4(b) and

8.4(c) of the Rules of Professional Conduct.

The board determined respondent knowingly violated duties owed to his

clients, the public, and the legal profession. His conduct caused actual harm. After

considering the ABA’s Standards for Imposing Lawyer Sanctions, the board

determined the baseline sanction ranges from suspension to disbarment. The board

agreed with the aggravating and mitigating factors found by the committee.

After reviewing this court’s prior jurisprudence addressing similar

misconduct, the board recommended respondent be suspended from the practice of

law for one year, with all but nine months deferred, followed by two years of

probation, with the following conditions: (1) respondent shall attend ten additional

hours of continuing legal education in law office management, (2) he shall sign a

contract with the Judges and Lawyers Assistance Program (“JLAP”) relative to his

continued counseling and/or therapy, and (3) he shall make restitution as

appropriate.

The ODC filed an objection to the disciplinary board’s recommendation.

Accordingly, the case was docketed for oral argument pursuant to Supreme Court

Rule XIX, § 11(G)(1)(b).

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 DISCUSSION

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.

Respondent neglected two legal matters, failed to communicate with two

clients, paid for two case referrals, and failed to cooperate with the ODC in two

investigations. In doing so, respondent has violated the Rules of Professional

Conduct as charged in the formal charges and amended formal charges.

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).

The record supports a finding that respondent knowingly violated duties owed

to his clients, the public, and the legal profession. His actions caused actual harm.

The baseline sanction in this matter is suspension. The aggravating and mitigating

factors found by the committee and adopted by the board are supported by the record.

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 Turning to the issue of an appropriate sanction, we find guidance from the

cases of In re: Goff, 02-1899 (La. 1/28/03), 837 So. 2d 1201, and In re:

Christenberry, 13-2461 (La. 1/27/14), 132 So. 3d 388. In Goff, an attorney

facilitated a runner-based solicitation scheme; however, the attorney maintained that

she was an unwitting participant. For this misconduct, we suspended the attorney

from the practice of law for nine months, with six months deferred. In

Christenberry, an attorney neglected two legal matters, failed to communicate with

a client, failed to timely refund unearned fees to a client, and failed to cooperate with

the ODC in an investigation. For this misconduct, we suspended the attorney from

the practice of law for one year and one day, with all but three months deferred,

followed by two years of supervised probation.

Based on this jurisprudence, we find the appropriate sanction for respondent’s

misconduct is a suspension from the practice of law for a period of one year and one

day. However, mindful of the mitigating factors, we will defer all but nine months

of this sanction. Following completion of the active portion of his suspension,

respondent shall be placed on probation for two years, subject to the conditions

recommended by the board, as follows: (1) respondent shall attend ten additional

hours of continuing legal education in law office management, (2) he shall sign a

contract with JLAP relative to his continued counseling and/or therapy, and (3) he

shall make restitution as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee

and disciplinary board, and considering the record, briefs, and oral argument, it is

ordered that Andres Humberto Aguilar, Louisiana Bar Roll number 34176, be and

he hereby is suspended from the practice of law for a period of one year and one day,

with all but nine months deferred. This suspension shall be retroactive to August 2,

10
2017, the date of respondent’s interim suspension. Following the active portion of

the suspension, respondent shall be placed on unsupervised probation for two years,

subject to the conditions set forth in this opinion. The probationary period shall

commence from the date respondent and the ODC execute a formal probation plan.

Any failure of respondent to comply with the conditions of probation, or any

misconduct during the probationary period, may be grounds for making the deferred

portion of the suspension executory, or imposing additional discipline, as

appropriate. 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.

11