In Re: Donald Joseph Melancon

Supreme Court of Louisiana
January 20, 2021
Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: DONALD JOSEPH MELANCON
No.2020-B-01177
_ _ _ _
_ _
IN R
E: Disciplinary Counsel - Applicant Other; Findings and Recommendations
(Formal Charges);
_ _ _ _ _ _
January 20, 2021
Suspension imposed. See per curiam.
WJC
JLW
JDH
SJC
JTG
JBM
PDG
01/20/2021 “See News Release 002 for any Concurrences and/or Dissents.”

1/20/21
S
UPREME COURT OF LOUISIANA
NO. 20
20-B-1177
I
N RE: DONALD JOSEPH MELANCON
AT
TORNEY DISCIPLINARY PROCEEDING
P
ER CURIAM
T his disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Donald Joseph Melancon , an
attorney licensed to practice law in Louisiana.
FO
RMAL CHARGES
Client Trust Account Mismanagement
On November 16, 2015, a $57 check was returned due to insufficient funds in
respondent’s client trust account. On November 27, 2015, a $600 check was
returned due to insufficient funds in respondent’s trust account. On December 2,
2015, the same $600 check was returned again due to insufficient funds in
respondent’s trust account.
When the ODC received an overdraft notice from respondent’s bank, it
conducted an audit of his trust account for the period from June 2015 through
December 2015. The audit revealed that respondent engaged in commingling and
conversion of client funds. The audit further showed that, on December 31, 2015,
respondent’s trust account should have held at least $5,448.94; instead, the balance
on that day was $64.67.
More specifically, in September 2015, respondent settled a case for $30,000
on behalf of his client Gary Forrest. Respondent deposited the $30,000 into his trust

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account on September 18, 2015. Just prior to the deposit, the balance in his trust
account w as $96.04. According to Mr. Forrest’s settlement statement, he and
respondent agreed to a fee of 28.5% ($8,550). The settlement statement also
indicated that respondent withheld $5,283.90 to pay third- party medical providers,
withheld $2,500 for “Tina Case’s Lien,” and withheld $100 for a petition filing fee.
Respondent also gave Mr. Forrest a $150 credit. From the $30,000 deposit,
respondent made the following distributions from his trust account:
1. $200 to the Clerk of Court;
2. $2,000 to respondent;
3. $2,000 to respondent;
4. $1,220 to Computer Repair Clinic;
5. $2,000 to respondent;
6. $500 to respondent;
7. $250 to respondent;
8. $5,275 to Edgardo Zeron;
9. $1,000 to Tina Case;
10. $5,341.10 to Mr. Forrest;
11. $2,500 to Edgardo Zeron; and
12. $4,476.10 to Josephine Forrest.
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On November 16, 2015, all of the funds from Mr. Forrest’s settlement had
been depleted without the remaining $1,500 being disbursed for Tina Case’s lien and
without the $5,283.90 being disbursed to the third -party medical providers.
Additionally, respondent disbursed $1,220 to Computer Repair Clinic . According
to the settlement statement, respondent was also supposed to disburse a total of

1 Mr. Forrest’s father was in the vehicle with Mr. Forrest at the time of the accident. According to
respondent, he represented both Mr. Forrest and his father. Apparently, Mr. Forrest’s father
instructed respondent to pay his portion of the proceeds directly to his wife, Josephine Forrest.

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$13,866.10 ($13,716.10 + $150) to Mr. Forrest. On September 25, 2015, respondent
disbursed $5,341.10 to Mr. Marshall, and on October 7, 2015, respondent disbursed
$4,476.10 to Josephine Marshall. On December 21, 2015, after the settlement funds
had been depleted, respondent disbursed an additional $450 to Mr. Marshall for a
total of $10,267.20. As such, respondent converted client funds.
Respondent also engaged in commingling because he failed to promptly
remove his attorney’s fees from the trust account. He deposited Mr. Forrest’s
settlement into his trust account on September 18, 2015. He removed his attorney’s
fees as follows: $2,000 on September 23, 2015; $2,000 on October 1, 2015; a total
of $3,000 on November 5, 2015; and $1,500 on November 12, 2015.
On January 10, 2017, respondent provided a sworn statement to the ODC.
During the sworn statement, he struggled to explain the overdrafts, showing that he
failed to properly reconcile his trust account.

Sharing Legal Fees and Solicitation
Respondent paid Edgardo Zeron, a runner, 50% of his attorney’s fees for the
referral of clients to his law firm. Respondent’s ban k statements and the audit of
respondent’s trust account show that he made several payments from the trust
account to Mr. Zeron (a/k/a Zeron Legal Services or “Rene” Zeron). Specifically,
during the audit period, respondent made the following payments to Mr. Zeron from
his trust account: $2,500 on June 6, 2015; $5,275 on September 22, 2015; $2,500 on
September 29, 2015; $320 on October 5, 2015; and $3,750 on November 5, 2015.
During respondent’s January 10, 2017 sworn statement, he indicated he
entered into a contractual relationship with Mr. Zeron, wherein Mr. Zeron would
provide various services to respondent’s Spanish-speaking clients. Respondent
described these services as translations and document collection. He also indicated
that the payment method was task-based, and he paid Mr. Zeron from his attorney’s

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fees earned on a case by case basis. The terms of the contractual agreement provided
that respondent would not pay Mr. Zeron more than 50% of the fee he collected.
During the audit period, respondent received a wire transfer into his trust
account in the amount of $7,500 from Maria Couceiro. Thereafter, he paid Mr.
Zeron $3,750 from his trust account. On November 16, 2015, respond ent issued a
$7,000 refund to Ms. Couceiro, which resulted in the conversion of both client and
third-party medical provider funds from Mr. Forrest’s settlement.

Contingency Fee Agreement
Respondent’s contingency fee agreement contains a clause requesting and/or
obtaining authorization to endorse and negotiate an instrument given in settlement
of the client’s claim, prior to the client approving the settlement.

DISCIPLINARY PROCEEDINGS
In August 2018, the ODC filed formal charges against respondent, as set forth
above, alleging that he violated the following provisions of the Rules of Professional
Conduct: Rules 1.5 (fee arrangements), 1.8(k) (a lawyer shall not solicit or obtain a
power of attorney or mandate from a client which would authorize the attorney,
without first obtaining the client’s informed consent to settle, to enter into a binding
settlement agreement on the client’s behalf or to execute on behalf of the client any
settlement or release documents), 1.15 (safekeeping property of clients or third
persons), 7.4 (direct contact with prospective clients), 8.4(a) (violation of the Rules
of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation). Respondent answered the formal charges,
denying any misconduct. The matter then pr oceeded to a formal hearing on the
merits.

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Hearing Committee Report
After considering the testimony and evidence presented at the hearing, the
hearing committee found that the ODC proved by clear and convincing evidence that
respondent mismanaged his trust account in violation of Rules 1.15(a) (a lawyer
shall hold property of clients or third person that is in a lawyer’s possession in
connection with a representation separate from the lawyer’s own property) and
1.15(b) (a lawyer may deposit the lawyer’s ow n funds in a client trust account for
the sole purpose of paying bank service charges on the account or obtaining a waiver
of those charges, but only in an amount necessary for that purpose) of the Rules of
Professional Conduct. The committee found, however, that the ODC failed to prove
respondent violated the other rules as alleged in the formal charges.
More specifically regarding the trust account mismanagement, the committee
determined respondent’s testimony that he did not “completely understand” how and
why he needed to reconcile his trust account “may have been the understatement of
the hearing, if not the year.” The committee further indicated that respondent’s
understanding of his ethical obligations related to his trust account was not merely
incomplete but “practically non-existent.” Respondent’s father helped respondent
set up his accounting books in 2005 and reconciled same until 2009, at which time
he was only able to reconcile them occasionally; in 2011, respondent’s father ceased
overseeing respondent’s accounting altogether. The committee found it
“inconceivable” that respondent’s trust account mismanagement was limited to the
seven-month period audited by the ODC. Respondent did not challenge the ODC
auditor’s findings and conclusions; as such the committee adopted those findings,
which fully support the allegations of trust account mismanagement made in the
formal charges. According to the committee, there is no question that respondent’s
bookkeeping was “incredibly sloppy;” commingling unquestionably occurred, and
conversion occurred at least constructively. However, respondent credibly testified

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that all clients had been made whole, and the evidence was so confusing that, while
it raised a suspicion of conversion, there was not clear and convincing evidence that
any client or third-party provider was not paid.
The committee further determined the ODC did not prove respondent shared
fees with a non-lawyer or used a non-lawyer to solicit business. Mr. Zeron testified
that he referred several clients, mainly members of his family, to respondent, but he
denied being compensated to do so. Mr. Zeron performed paralegal and
translation/interpretation services for respondent’s Spanish -speaking clients.
Neither respondent nor Mr. Zeron kept time records of the work performed, and the
only stipulation was that Mr. Zeron would not be paid more for such services than
what respondent made in net legal fees in connection with a given case. Respondent
testified that Mr. Zeron provided court-runner services but did not solicit clients on
his behalf. However, respondent also admitted that payments to Mr. Zeron were
improperly drawn on his trust account. These payments should have been drawn
against respondent’s earned fees deposited into his operating account. According to
the committee, however, neither these payments nor any other substantial evidence
supported the allegation that respondent paid Mr. Zeron a quid pro quo for client
referrals.
Finally, the committee determined the ODC did not prove respondent’s
contingency fee contract contained a clause authorizing him to settle cases without
his client’s consent. Respondent testified that he copied the following clause from
a form book:
Attorney has full and unlimited power to act in client’s
behalf, to obtain additional or substitute counsel, to
endorse checks or drafts in client’s name, and to retain fees
and costs. Client agrees to permit attorney to handle all
matters in the preparation and conduct of this case, to take
no action against the advice of attorney, to refrain from
contacting adverse parties or their attorneys, and to advise
attorney immediately of any change of client’s address or
telephone number.

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The committee found that this language does not give respondent the power to settle
a client’s case without the client’s consent. While the grant of unlimited power in
the contract is broad, the list of specific powers that follows does not include the
power to settle a case without the client’s consent. At worst, the language is
ambiguous, and the ODC failed to show respondent had exercised such power in
connection with any client’s case.
Having found respondent violated the Rules of Professional Conduct as set
forth above, the committee then determined that respondent’s mismanagement of his
trust account was grossly negligent, if not knowing in some instances, but was not
intentional. Other than delayed payments, there was no clear and convincing
evidence of harm to any clients. However, respondent did cause general harm to the
public and the legal profession. Relying on the ABA’s Standards for Imposing
Lawyer Sanctions, the committee determined the baseline sanction is suspension.
In aggravation, the committee found a pattern of misconduct and multiple
offenses. In mitigation, the committee found the absence of a prior disciplinary
record, the absence of a dishonest or selfish motive, timely good faith effort to make
restitution, a cooperative attitude toward the proceedings, and remorse.
After further considering this court’s prio r jurisprudence addressing similar
misconduct, the committee recommended respondent be suspended from the
practice of law for one year and one day, fully deferred, subject to two years of
supervised probation with the following conditions:
1. During the probationary period, respondent shall submit to the ODC quarterly
audits of his trust account to be performed by an ODC -approved CPA, with
the costs and expenses of the audit to be paid by respondent;

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2. During the probationary period, at least six hours of r espondent’s mandatory
continuing legal education requirements shall be in the area of law practice
management/client trust account management;
3. During the probationary period, respondent shall successfully complete the
Louisiana State Bar Association’s Ethi cs School and Trust Accounting
School; and
4. Any failure of respondent to comply with the conditions of probation or any
misconduct during the probationary period shall be grounds for making the
deferred suspension executory or for imposing additional discip line, as
appropriate.
The ODC filed an objection to the committee’s report and recommendation.
Specifically, the ODC objected to the committee’s factual findings and conclusions
of law and argued that the recommended sanction is too lenient.
Two months af ter the committee filed its report, the ODC filed a motion to
supplement the record with evidence that respondent, contrary to his hearing
testimony, did not pay the third-party medical providers in the Forrest matter. The
disciplinary board granted the O DC’s motion, and the following evidence was
admitted into the record: (1) a July 22, 2019 invoice from Westbank Physician
Rehabilitation indicating a $2,899.90 balance owed relative to the Forrest matter;
(2) a July 22, 2019 invoice from LA MRI, INC. indic ating a $2,780 balance owed
relative to the Forrest matter; and (3) a July 22, 2019 invoice from Orthopedic Care
Center of Louisiana indicating a $644 balance owed relative to the Forrest matter.

Disciplinary Board Recommendation
After review, the disciplinary board adopted the hearing committee’s factual
findings. More specifically, the board concurred in the committee’s finding that
respondent misused his trust account and commingled and converted funds. The

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board also agreed with the committee that the ODC failed to prove respondent shared
professional fees with a non- attorney, paid a non -attorney for solicitation of
business, or obtained a power of attorney or mandate from a client authorizing
respondent to enter into a settlement agreement without the client’s consent.
The board then turned to a consideration of the evidence the ODC presented
after the committee filed its report. Noting the evidence would have helped the
committee determine that respondent had not paid these third parties, which th e
committee was unable to do with the evidence presented at the hearing, the board
nevertheless decided the evidence does not warrant a reopening of the hearing
because the committee did not need the documents to find respondent converted the
funds.
Based on these facts, the board agreed with the committee that respondent
violated Rules 1.15(a) and 1.15(b) of the Rules of Professional Conduct.
Additionally, the board found a violation of Rules 1.15(d) (failure to timely remit
funds to a client or third pe rson) and 1.15(f) (a lawyer shall subject all client trust
accounts to a reconciliation process at least quarterly and shall maintain records of
the reconciliation as mandated by this rule). In light of respondent’s violation of
these rules, the board further found that respondent violated Rule 8.4(a).
The board then determined respondent violated duties owed to his clients, the
public, and the legal profession. His conduct was grossly negligent and, in some
respects, knowing. The newly -submitted evidence suggests respondent’s
misconduct may have caused actual harm to his client and the three third- party
medical providers due to the continued delay in respondent’s payment of the
providers’ invoices relative to the client’s medical treatment. His misconduct also
created the potential for harm to his clients. The board agreed with the committee
that the baseline sanction is suspension.

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The board also agreed with the committee’s determination of aggravating
factors. However, in mitigation, the board foun d only the absence of a prior
disciplinary record, a cooperative attitude toward the proceedings, and remorse.
After further considering this court’s prior jurisprudence addressing similar
misconduct, the board recommended respondent be suspended from the practice of
law for one year and one day, with six months deferred, followed by two years of
supervised probation with the following conditions:
1. During the probationary period, respondent shall submit to the ODC quarterly
audits of his trust account to be performed by an ODC-approved CPA, with
the costs and expenses of the audit to be paid by respondent;
2. During the probationary period, at least six hours of respondent’s mandatory
continuing legal education requirements shall be in the area of law practice
management/client trust account management;
3. During the first year of the probationary period, respondent shall successfully
complete the Louisiana State Bar Association’s Ethics School and Trust
Accounting School;
4. Within six months of the imposition of di scipline, respondent shall provide
evidence that all amounts retained from the Forrest settlement to pay third-
party medical providers have been paid by him to those providers; and
5. Any failure of respondent to comply with the conditions of probation or any
misconduct during the probationary period shall be grounds for making the
deferred suspension executory or for imposing additional discipline, as
appropriate.
Neither respondent nor the ODC filed an objection to the disciplinary board’s
recommendation.

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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.
The record in this matter supports a finding that respondent mismanaged his
trust account, resulting in commingling and conversion. The record also supports a
finding that respondent still owes third-party medical providers in the Forrest matter
$6,323.90. This misconduct amounts to a violation of the Rules of Professional
Conduct as found by the disciplinary board.
2
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).

2 Based on the record and in light of the fact that the ODC did not object to the board’s findings
and recommendation, we agree that the ODC failed to prove by clear and convincing evidence a
violation of Rules 1.5, 1.8(k), 7.4, and 8.4(c) of the Rules of Professional Conduct as originally
alleged in the formal charges.

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Both the hearing committee and the board determined that respondent’s
conduct was grossly negligent, if not knowing at times. We agree. Respondent
negligently, if not knowingly, violated duties owed to his clients, the public, and the
legal profession. His conduct caused actual harm to the third- party medical
providers in the Forrest matter, who still have not been paid, and had the potential
to cause even more harm to his clients. Like the committee and the board, we find
the baseline sanction is suspension.
Aggravating factors present are a pattern of misconduct, multiple offenses,
and substantial experience in the practice of law (admitted 2005). The record
indicates the presence of the following mitigating factors: the absence of a prior
disciplinary record, a cooperative attitude toward the proceedings, and remorse.
Turning to the issue of an appropriate sanction, we find guidance from In re:
Johnson, 17-1011 (La. 9/6/17), 225 So. 3d 1057, wherein an attorney failed to timely
remit funds owed to a client, failed to account for funds belonging to a client, allowed
his trust account to become overdrawn, and took cash withdrawals from his trust
account. We found that the attorney acted negligently, and he paid his client the full
amount owed prior to the court’s imposition of discipline. Under these
circumstances, we suspended the attorney from the practice of law for one year and
one day, fully deferred, subject to two years of supervised probation with conditions.
The primary difference here is that respondent has not yet paid the third-party
medical providers what they are owed. Therefore, we find an actual period of
suspension, as recommended by the board, is warranted.
Accordingly, we will adopt the board’s recommendation and suspend
respondent from the practice of law for one year and one day, with six months
deferred, subject to a two-year period of supervised probation with the conditions
recommended by the board.

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DECREE
Upon review of the findings and recommendations of the hearing committee
and the disciplinary board , and considering the record, it is ordered that Donald
Joseph Melancon, Louisiana Bar Roll number 29976, be and he hereby is suspended
from the practice of law for a period of one year and one day, with six months of the
suspension deferred. Following the active portion of the suspension, respondent
shall be placed on supervised probation for a period of two years, subject to the
conditions recommended by the disciplinary board. The probationary period shall
commence from the date respondent, the ODC, and the probation monitor execute a
formal probation plan. Any failure of respondent to comply with the c onditions of
probation, or any misconduct during the probationary period, shall be grounds for
making the deferred portion of the suspension executory or for 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.