In Re: Doris McWhite Weston

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #014

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 26th day of March, 2019, are as follows:

PER CURIAM:

2018-B-1799 IN RE: DORIS MCWHITE WESTON

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 Doris McWhite
Weston, Louisiana Bar Roll number 26419, be and she hereby is
suspended from the practice of law for a period of one year and
one day. This suspension shall be deferred in its entirety,
subject to a two-year period of supervised probation governed by
the conditions set forth in this opinion. The probationary
period shall commence from the date respondent, the probation
monitor, and the ODC sign a formal probation plan. Any failure
of respondent to comply with these conditions, or any misconduct
during the probationary period, may be grounds for making the
deferred 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.

03/26/19

SUPREME COURT OF LOUISIANA

NO. 2018-B-1799

IN RE: DORIS McWHITE WESTON

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

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

Disciplinary Counsel (“ODC”) against respondent, Doris McWhite Weston, an

attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

By way of background, in 2010, respondent commenced employment with the

Louisiana Department of Children and Family Services (“DCFS”), where she

remains employed as an Attorney IV. She also maintains a small private practice.

In September 2013, respondent began representing her father in a personal

injury matter. On September 19, 2013, respondent wrote to third-party medical

provider Broadmoor Chiropractic Clinic (“the clinic”) to assure the clinic that she

would pay her father’s medical bill from any settlement or proceeds received on her

father’s behalf. That same day, the clinic sent a medical lien letter to respondent.

The clinic treated respondent’s father from September 16, 2013 until January 2,

2014.

On January 30, 2014, respondent settled her father’s claim for $12,500. That

same day, she negotiated a reduction of the clinic’s $4,901 bill to $4,000 if paid

within thirty days. On February 10, 2014, respondent deposited the settlement check

into her trust account. On February 11, 2014, respondent transferred $4,000 from

the trust account to her operating account. On February 12, 2014, respondent had a

cashier’s check in the amount of $8,475.01 issued on her trust account and made

payable to her parents. Respondent did not charge her father any attorney’s fees and

waived $56.50 in medical records costs. Respondent prepared a settlement

statement, which reflected that the clinic was owed $4,000 and that this amount was

$901 less than the clinic’s original charge.

The clinic did not receive the $4,000 within the thirty-day period and notified

respondent that it was now seeking full payment. On several occasions in March

and April 2014, the clinic attempted to contact respondent about the outstanding

balance. On April 30, 2014, respondent called the clinic and stated that the case had

been closed and a check sent three weeks previously. The clinic informed

respondent that it had not received a check. On May 27, 2014, respondent told the

clinic she would determine if the check had been cashed and, if not, would reissue

the check. The clinic made several subsequent attempts to collect the balance.

On August 6, 2014, respondent sent the clinic a cashier’s check in the amount

of $4,000. On August 12, 2014, the clinic notified respondent that there was still a

balance due of $901 and that, if the balance was not paid, it would “follow through

with contacting the Louisiana Attorney Disciplinary Board.” Respondent informed

the clinic that she would pay the $901 on August 29, 2014. However, the clinic still

had not received the payment on September 11, 2014. That day and the next, the

clinic contacted respondent about the balance. On September 17, 2014, respondent

gave the clinic her debit card information in order to make the payment, but the

charge was declined by the credit card company because it exceeded respondent’s

daily limit for debit card transactions. On September 30, 2014, the clinic filed a

disciplinary complaint against respondent; the ODC received this complaint in its

office on October 3, 2014. Also on October 3, 2014, the clinic successfully charged

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$700 to respondent’s debit card. On November 11, 2014, the clinic successfully

charged the remaining $201 to respondent’s debit card.

DISCIPLINARY PROCEEDINGS

In October 2017, the ODC filed formal charges against respondent, alleging

that her conduct violated Rule 1.15 (safekeeping property of clients or third persons)

of the Rules of Professional Conduct. Respondent answered the formal charges,

essentially acknowledging the underlying facts set forth above. She further

explained:

In an effort to resolve the matter, I arranged for the
payment of $901. This amount was paid from my personal
funds, as I withheld only the $4000.00 agreed upon as
Broadmoor Clinic payment from Mr. McWhite’s
settlement proceeds. After making the arrangement, a
representative from Broadmoor Chiropractic Clinic later
advised that the attempt to charge the debit card failed.
This was due to my daily limit being less than the $901
dollar charge. I instructed Broadmoor Chiropractic Clinic
to split the payment into two payments of $700 and $201,
to be ran on different dates. The first payment posted
without incident. The remaining balance of $201
somehow remained outstanding, until I received a
complaint about an unpaid balance. I contacted
Broadmoor Clinic, was advised that the employee I
entered the arrangement with was no longer employed
there. My card number was on file and the representative
made the charge to my account at that time, clearing the
outstanding $201 balance. I apologized for any
miscommunication. The account has been paid in full.

Formal Hearing

This matter proceeded to a formal hearing on the merits. The ODC introduced

the transcripts of the depositions of two witnesses associated with the clinic, but did

not call any witnesses to testify before the hearing committee. Respondent testified

on her own behalf and on cross-examination by the ODC.

Respondent testified that she is currently employed as an attorney with the

DCFS and has been since 2010. Her position at DCFS is manager of the appeals

unit, which handles all of the department’s appeals dealing with economic stability

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issues (food stamps, kinship care payments, 5-TAP payments, etc.). The DCFS

permits her to have a private practice, and she operated a very limited private practice

to handle legal matters for family and friends. Her position with the DCFS also

requires her to be an attorney in good standing.

Regarding the payment to the clinic, respondent testified that she transferred

the $4,000 from her trust account to her operating account because she had no checks

for her trust account. She never purchased checks for the trust account because she

did not have enough clients to justify the cost of the checks. She issued a $4,000

check from her operating account to the clinic soon after receiving the settlement

funds, but the clinic never received the check. She did not send the clinic another

$4,000 check until August 2014. Respondent also admitted that the $4,000 owed to

the clinic was withdrawn from her operating account at some point before she issued

the August 2014 check. In approximately March 2014, she withdrew the funds as

cash so she could get a cashier’s check for the clinic but then inadvertently used the

cash to pay her own personal expenses.

Respondent further testified that she learned she was pregnant in February

2014. She had previously suffered multiple miscarriages, and the pregnancy was

high-risk due to her age and other health complications. Respondent’s activity was

limited and her physician recommended bed rest, but she had to return to work at the

DCFS because she is the sole bread winner for her family. Her pregnancy was so

overwhelming that she let other matters drop. Respondent expressed remorse for

her misconduct and stated that, under normal circumstances, she would not have

failed to promptly pay the clinic, but her priority at the time was keeping her baby

alive.

Hearing Committee Report

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

hearing committee made factual findings consistent with the underlying facts set

forth above. Additionally, the committee found that respondent maintained a client

trust account but testified that she did not have any checks for the account because

they would have cost $200. The committee further noted that respondent testified

she had a “counter check” drawn on her operating account on February 11, 2014, in

the amount of $4,000 and made payable to the clinic, which she then mailed to the

clinic. However, she did not have a copy of the counter check or any other evidence

that the check was drawn or mailed. Finally, respondent testified that the $901

charge to her debit card was above her daily limit and she notified the clinic that the

payment needed to be split into two payments charged on different days. Based on

these findings, the committee determined respondent violated Rule 1.15 of the Rules

of Professional Conduct as alleged in the formal charges. The committee also

concluded that respondent’s failure to comply with Rule 1.15 constitutes conversion.

The committee determined that respondent knowingly and intentionally

violated duties owed to her client and the public. She caused no actual injury of any

significance, but the clinic was inconvenienced. In aggravation, the committee

found a prior disciplinary record (2004 diversion for failing to promptly pay a third

party), a dishonest or selfish motive, a pattern of misconduct, refusal to acknowledge

the wrongful nature of the conduct, substantial experience in the practice of law

(admitted 1999), and indifference to making restitution. In mitigation, the

committee found personal or emotional problems (high-risk pregnancy with medical

complications and associated emotional effects), a cooperative attitude toward the

proceedings, and remorse.

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

be suspended from the practice of law for one year and one day, with nine months

deferred, followed by a two-year period of probation subject to the conditions that

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respondent attend Trust Accounting School and obtain checks for her client trust

account.

The hearing committee chair dissented, disagreeing with some of the

aggravating factors found by the committee as well as disagreeing with the

recommended sanction. Essentially, the chair disagreed with all of the aggravating

factors found by the majority except the prior disciplinary record; however, he

determined that the remoteness of the prior offense was a mitigating factor.

Additionally, the chair stated:

The Respondent has a responsible job with the State that
requires a law license and that would be in jeopardy if a
suspension was ordered… Her job does not require that
she manage or have access to a trust account. She is the
primary support for her family. There is absolutely no
evidence that the Respondent has not fulfilled all of the
duties of her State job in a proper manner. While she does
have a limited private practice, it is my opinion that a
sanction can be crafted that would enable her to continue
her State employment, while adequately punishing her for
the violation that has been proven by the requisite burden
of proof.

Based on this reasoning, the chair recommended respondent be suspended from the

practice of law for one year, fully deferred, subject to a one-year period of supervised

probation, during which time she shall not engage in the private practice of law

outside of her employment with the DCFS, attend Trust Accounting School, have

her trust account periodically audited, and obtain checks for her trust account.

Respondent objected to the hearing committee’s report. While respondent

agreed with the committee’s overall factual findings, she disagreed with the

following aggravating factors: a dishonest or selfish motive, a pattern of conduct,

refusal to acknowledge the wrongful nature of the conduct, and indifference to

making restitution. She also argued that the recommended sanction is overly harsh

and the more appropriate sanction is the one recommended by the chair in his dissent.

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Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing

committee’s factual findings do not appear to be manifestly erroneous, are supported

by the record, and have been generally admitted by respondent. Based on those

facts, the board determined that respondent violated Rule 1.15 of the Rules of

Professional Conduct.

The board then determined that respondent knowingly and intentionally

violated duties owed to her client and the third-party medical provider. While

respondent’s misconduct did not cause actual harm, it created the potential for harm

to her client and the third party. After considering the ABA’s Standards for

Imposing Lawyer Sanctions, the board determined that the baseline sanction is

suspension.

In aggravation, the board found the following: a prior disciplinary record, a

dishonest or selfish motive, a pattern of misconduct, and substantial experience in

the practice of law. In mitigation, the board found the following: personal or

emotional problems, full and free disclosure to the disciplinary board and a

cooperative attitude toward the proceedings, remorse, and remoteness of prior

offense.

After considering this court’s prior jurisprudence addressing similar

misconduct, the board emphasized respondent’s prior disciplinary history involving

similar misconduct and the knowing and intentional nature of the misconduct at issue

in concluding that a period of actual suspension is appropriate. Accordingly, the

board recommended respondent be suspended from the practice of law for one year

and one day, with nine months deferred, followed by a two-year period of probation

with the condition that respondent complete Trust Accounting School and obtain

checks for her trust account.

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One board member dissented, stating that he would adopt the recommendation

of the hearing committee chair as to the sanction to be imposed.

Respondent 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).

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.

There is clear and convincing evidence in the record that respondent failed to

promptly remit $4,901 to a third-party medical provider. Based on these facts,

respondent has violated Rule 1.15 of the Rules of Professional Conduct.

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

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mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So. 2d 520

(La. 1984).

Respondent negligently violated duties owed to her client and the third-party

medical provider. Her misconduct did not cause actual harm, but it created the

potential for harm to her client and the third party. Considering the ABA’s

Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is

suspension.

In aggravation, the record supports the following factors: a prior disciplinary

record and substantial experience in the practice of law. In mitigation, the record

supports the following factors: personal or emotional problems, full and free

disclosure to the disciplinary board and a cooperative attitude toward the

proceedings, delay in disciplinary proceedings, remorse, and remoteness of prior

offense.

In recommending an actual period of suspension, both the hearing committee

and the disciplinary board emphasized the knowing and intentional nature of

respondent’s misconduct and the fact that she had been offered diversion in 2004 for

similar misconduct. However, based on our review of the record, we find this

sanction is unduly harsh.

At the time she settled her father’s personal injury case, respondent was

experiencing significant personal and emotional problems attributable to a high-risk

pregnancy. These issues appear to have contributed significantly to her negligence

in failing to timely pay the medical provider. We see no evidence in the record that

respondent’s misconduct was the result of a dishonest or selfish motive or a failure

to learn from past mistakes. Indeed, had it not been for the complications of her

pregnancy, we believe respondent would not have failed to timely remit the clinic’s

funds.

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In light of the substantial mitigating factors present, the negligent nature of

respondent’s conduct, the lack of any actual harm, and the fact that respondent made

all but $201 in restitution before she had knowledge of the disciplinary complaint

against her, we will reject the board’s recommendation. We will suspend respondent

from the practice of law for one year and one day, fully deferred, subject to a two-

year period of supervised probation with the following conditions:

(1) Respondent shall not engage in the private practice of law outside of her

employment with the DCFS for a period of one year.

(2) Within the first year of the probationary period, respondent shall attend Trust

Accounting School.

(3) During the second year of the probationary period, respondent shall have her

trust account audited quarterly and report the results of the audit to the ODC;

and

(4) Respondent shall obtain checks for her trust account prior to commencing the

private practice of law.

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 Doris McWhite Weston, Louisiana Bar Roll number 26419, be and she

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

This suspension shall be deferred in its entirety, subject to a two-year period of

supervised probation governed by the conditions set forth in this opinion. The

probationary period shall commence from the date respondent, the probation

monitor, and the ODC sign a formal probation plan. Any failure of respondent to

comply with these conditions, or any misconduct during the probationary period,

may be grounds for making the deferred suspension executory, or imposing

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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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