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
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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
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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.
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