dissenting. This case involves issues of first impression and interpreting this court’s new rules regulating and disciplining attorneys at law, and in my view, the court has seriously missed the purpose and intent of the court’s Code of Professional Conduct. It is necessary to flesh out the facts that the majority fails to mention.
Carolyn Russell is a 71-year-old woman living in Pine Bluff; her husband, George Russell, is 76. Mr. Russell suffered a stroke and was hospitalized in April of 2000. When it came time for Mr. Russell to be released, Mrs. Russell could not locate his doctor, Dr. Frigon, so she decided to contact an attorney to assist with obtaining her husband’s release. Mrs. Russell hired appellant Robert Cortinez to secure her husband’s release from the hospital; Cortinez charged Mrs. Russell an initial fee of $750.00 for his services. Cortinez contacted Dr. Frigon by phone, and followed up with a fax. A few days later, Mr. Russell was still in the hospital, but he had been moved to the “transitional living area.” Cortinez informed Mrs. Russell that he would need an additional $5,000.00 to obtain Mr. Russell’s release from the transitional living area. Mrs. Russell paid this additional amount. Cortinez later admitted that he did not know if he “sprung” Mr. Russell or if Mr. Russell’s release would have happened “as a matter of course.”
At a later date, Mrs. Russell came back to Cortinez’s office to express her concerns about what would happen to the Russells’ assets in the event Mr. Russell had to go into a nursing home. Cortinez suggested that one way of protecting their assets would be to create a trust, and Mrs. Russell then retained Cortinez to draft a trust instrument. Cortinez’s fee for drafting the trust was $10,000; Mrs. Russell paid $3,000 up front, with $1,000 due per month until the entire $10,000 was paid. Cortinez informed Mrs. Russell that he could probably have the trust drafted within one month, but while drafts were circulated back and forth between Mrs. Russell and Cortinez, the trust was never completed. During the hearing before the Committee, Cortinez conceded that he “[did] not generally do trusts” as part of his practice.
In February of 2001, the Office of Professional Conduct received a grievance against Cortinez from Steve Jacobs, to whom Mrs. Russell had given a power of attorney. Based on the complaint, the Office began conducting an investigation. After interviewing Mrs. Russell and Mr. Jacobs, the Office determined that sufficient grounds existed to support a formal complaint, and an affidavit was prepared based on Statements Mrs. Russell made to Beau Pederson, the investigator for the Office. Mrs. Russell signed the affidavit and returned it to the Office, at which time the Office prepared a formal complaint based on that affidavit. Cortinez filed a timely response to the complaint on June 15, 2001.
The complaint, the exhibits, and Cortinez’s response were sent to ballot-vote Panel A, which issued its findings and order. On October 23, 2001, Cortinez’s attorney, Lynn Davis, deposed Mrs. Russell; a copy of this deposition was subsequently made a part of Cortinez’s file and was made available to- the ballot-vote Committee. Notice of Panel A’s vote rulings were sent to Cortinez on November 27, 2001. The letter informed Cortinez that the Committee found Cortinez’s conduct violated Rules 1.3, 1.4(a), and 1.5(a) of the Model Rules of Professional Conduct; the letter also stated that he was suspended for six months, and that he had to pay restitution in the amount of $7,500. On December 5, 2001, Lynn Davis sent a letter to the Committee informing it that Cortinez requested a public hearing.
A de novo public hearing was held on February 22, 2002, and under the court’s new procedural rules, Panel C of the Committee on Professional Conduct was the presiding panel for this hearing. Panel C found that Cortinez violated Model Rule 1.5(a) when he charged Mrs. Russell $5,750 for obtaining the release of her husband from the hospital, stating that the fee was unreasonable in light of the amount of work performed. Panel C then issued a caution to Cortinez. Cortinez filed an objection to the Panel’s Findings and Order, asserting that the order erroneously set forth the findings of the Committee. “In fact, the Office’s selected excerpts from a selected deposition are misleading and not true,” Cortinez wrote.
In conjunction with this case, the Office also submitted a petition for costs to Panel C, along with ballots to each committee member in an effort to recover the costs expended in the investigation and hearing of this case, totaling $274.71. Four of Panel C’s members returned ballots approving the petition for costs. The Panel Chair, however, refused to sign an order for costs because of an error in the petition; the petition alleged that two violations had been found, when in fact there had been only one,1
Although Panel C imposed only a caution for Cortinez’s having violated Model Rule 1.5(a), it was Cortinez who filed a notice of appeal on April 10, 2002, regarding the issue of whether the findings set forth by the Office were contrary to the findings made by the Committee. The Office of Professional Conduct filed a notice of cross-appeal in this case on April 11, 2002; its appeal concerns the Panel’s sanctioning Cortinez with only a caution, its failure to order restitution, and the Panel Chair’s refusal to sign an order approving the petition for costs.
In this appeal, the majority opinion affirms Panel C’s refusal to order restitution. I strongly disagree and would reverse the Panel’s decisions as being clearly erroneous. First, I point out that Panel C found that Cortinez’s $5,750 fee was unreasonable in light of the amount of work performed; even so, the Panel failed either to order Cortinez to return any fees to Mrs. Russell or to fine him for his violation of the Rules. Nor did Panel C consider returning any unearned fees in Cortinez’s failed attempt to complete an appropriate trust.2
The majority opinion affirms Panel C’s decision, in part, because the Office presented no evidence as to what would have been a reasonable fee; because of the lack of evidence upon which to base the amount of restitution, the majority simply concluded that it could not say Panel C abused its discretion in failing to order restitution. This matter is a de novo appeal, and in my view, Panel C was clearly erroneous. Flow can this court approve that Panel’s decision finding that Cortinez charged an unreasonable fee, but then not order restitution of the amount he received unlawfully? At the very least, this court should remand this case for a hearing to determine what would constitute a reasonable fee and to calculate the amount necessary to compensate Mrs. Russell. To allow Cortinez to retain the Russells’ monies, even though Cortinez concedes he charged them an unreasonable fee, effectively rewards him for having violated Rule 1.5 of the Code. This makes no sense to me, and I feel confident that such beneficial treatment given an attorney in these circumstances was not contemplated by this court when it adopted its rules.
In addition, it is unclear whether Panel C took into consideration the fact that Cortinez had taken a substantial sum of money from Mrs. Russell — at least $4000 — to prepare a trust agreement that was never completed. The record is clear that Cortinez has not offered to return any of the $5,570.00 fee paid by Mrs. Russell, even though it is obvious from the record that Cortinez did little to get Mr. Russell released from the hospital, nor was it shown that his efforts had anything to do with Mr. Russell’s release.
Cortinez’s action in initiating this appeal reflects that he fails to see he has done anything wrong in this matter. To permit Cortinez to walk away from this proceeding with nothing more than a caution amounts to little more than a slap on the wrist, despite his essential conversion of these funds. The sanction imposed by Panel C is clearly erroneous, and our court, in this de novo review, should enter an appropriate sanction, restitution, and fine, or remand the case to the Panel to impose sanctions. Today’s decision sends the wrong message to the members of the bar, as well as the public who engage attorneys for their services — clients beware, because if you are overreached by an attorney who violates the State’s ethical standards, do not expect assistance from the Professional Conduct Committee. I- respectfully dissent.
Hannah, J., joins this opinion. Corbin, J., not participating."While my main concern does not bear on this mistake in the petition, I note that the Office should have corrected this error instead of appealing what appears to be a scrivener’s error.
In contrast, Panel A, the original panel to consider and cast ballot votes in this matter, suspended Cortinez’s license to practice law for six months and ordered him to pay restitution in the amount of $7,500. It is correct that we review only Panel C’s decision, under Section 11A of the Procedures of the Court Regulating Professional Conduct of Attorneys at Law. However, the results of Panel A’s consideration of this case are in the record before this court.