In Re: Kevin C. Schoenberger

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #029
F
ROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of June, 2021 are as follows:
PER CURIAM:
2021-B-00191 IN RE: KEVIN C. SCHOENBERGER
SUSPENSION IMPOSED. SEE PER CURIAM.
Crichton, J., concurs in part, dissents in part and assigns reasons.

S
UPREME COURT OF LOUISIANA
No
. 2021-B-0191
I
N RE: KEVIN C. SCHOENBERGER
ATTOR
NEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
D
isciplinary Counsel (“ODC”) against respondent, Kevin C. Schoenberger, an
attorney licensed to practice law in Louisiana.
UNDE
RLYING FACTS
The salient facts of these proceedings are largely undisputed. In early 2016,
the ODC received notice of an overdraft that occurred in respondent’s trust account
on February 25, 2016. Respondent indicated that the shortage was due to his failure
to consider an outstanding client disbursement which cleared the trust account before
a $4,000.00 disbursement to his operating account was processed. To correct the
error, respondent deposited a check issued from his operating account into his trust
account the next day, but both the disbursed and deposited items were returned
unpaid due to insufficient funds.
The ODC’s forensic auditor conducted an analysis of the trust account for the
period between September 2015 and February 2016, and she identified several
discrepancies which revealed a shortage of funds held in trust. A total of $59,423.12
in net client proceeds, third-party liabilities, and IOLTA interest were identified as
collected but not paid.
1 The analysis further revealed that in four client matters, the
1 On February 29, 2016, respondent’s trust account balance was $143.69, which is $59,279.43
short of the outstanding client proceeds, third-party liabilities, and IOLTA interest.
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sequence number on the checks did not agree with other checks issued at that time ,
and the checks were apparently backdated.2
During its investigation, the ODC sent correspondence respondent asking for
information about why the checks had apparently been backdated. Respondent
replied through correspondence, stating that he “backdated [the] checks to make his
matters appear orderly with third-party vendors.”

DISCIPLINARY PROCEEDINGS
Formal Charges

After conclusion of its investigation, the ODC filed formal charges against
respondent. The charges alleged respondent violated Rule 1.15 of the Rules of
Professional Conduct by allowing the balance of his trust account to drop below the
amount he was holding for clients and third parties and by failing to make prompt

2 Specifically, the audit revealed the following facts:

On September 28, 2015, respondent deposited the sum of $8,222.00 on behalf of his
client, Ollie Dixon. The associated settlement statement shows that “Louisiana Primary Care
Consultants” was owed $2,222.00 from the settlement. Respondent issued a check in this amount
to the third-party provider with a date of November 23, 2015. The check was not processed until
May 22, 2017.

On November 12, 2015, respondent deposited the sum of $36,000.00 on behalf of his
client, Walter Jenkins. The associated settlemen t statement shows that “Healthcare Center”
was owed $10,401.00 from the settlement. Respondent issued a check in this amount to the
third-party provider with a date of February 6, 2016. The check was not processed until April
17, 2017.

On September 25, 2015, respondent deposited the sum of $15,000.00 was deposited on
behalf of his client, Willie Smith. The associated settlement statement shows that “Sedgwick
Claims/ATT&T subro” was owed $7,500.00 from the settlement. Respondent issued a check
in this amount to this third-party provider with a date of October 1, 2015. The check was not
processed until May 23, 2016.

On January 15, 2016, respondent deposited $9,300.00 on behalf of his client, Zachary
Henderson. The associated settlement statement sho ws that “Westbank Health Care Center”
was owed $4,812.00 from the settlement. Respondent issued a check in this amount to this
third-party provider on April 12, 2016. The check was not processed until February 10, 2017.

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disbursements to third parties.3 The ODC further alleged respondent’s backdating
of the checks violated Rule 8.4(c).4
Respondent answered the formal charges. He admitted that his trust account
was over drafted but denied committing conversion of funds. He further denied the
allegation that his handling of third-party funds violated Rule 1.15. Finally,
respondent admitted he backdated various checks, but denied that he did so in an
effort to deceive the ODC.

Hearing Committee Report
The matter proceeded to a formal hearing before the hearing committee. The
ODC introduced documentary evidence and called its forensic auditor as a witness.
Respondent introduced documentary evidence, testified on his own behalf, and was

3 The formal charges cited Rule 1.15 generally without specifying any of its subparts. In its pre -
hearing brief, however, the ODC specified that respondent violated Rule s 1.15(a) and (d), which
provide, in pertinent part:

(a) A lawyer shall hold property of clients or third persons that is in
a lawyer’s possession in connection with a representation separate
from the lawyer’s own property.

* * *
(d) Upon receiving funds or other property in which a client or third
person has an interest, a lawyer shall promptly notify the client or
third person. For purposes of this rule, the third person’s interest
shall be one of which the lawyer has actual knowledge, and shall be
limited to a statutory lien or privilege, a final judgment addressing
disposition of those funds or property, or a written agreement by the
client or the lawyer on behalf of the client guaranteeing payment out
of those funds or property. Except as stated in this rule or otherwise
permitted by law or by agreement with the client, a lawyer shall
promptly deliver to the c lient or third person any funds or other
property that the client or third person is entitled to receive and, upon
request by the client or third person, shall promptly render a full
accounting regarding such property.

4 Rule 8.4(c) provides:
It is professional misconduct for a lawyer to:
* * *
(c) Engage in conduct involving dishonesty, fra ud, deceit or
misrepresentation.

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cross-examined by the ODC. With regard to the backdating of the checks,
respondent testified that he backdated the checks because he “wanted to have it paid
on dates that if anybody looked at my files later on, or even their files later on, if
they subpoenaed the records, it would show that I timely paid.”
After considering the testimony and evidence presented at the hearing, the
hearing committee made a factual finding that respondent violated Rule 1.15(a),
although it found the overdraft of the trust account was inadvertent. The committee
determined respondent’s accounting practices were “sloppy,” but found the evidence
showed that he paid all clients and third parties the entirety of the funds due to them.
The committee declined to find respondent’s failure to make prompt payment
to third parties violated Rule 1.15(d). In doing so, the committee noted none of the
third parties to whom respondent owed money had perfected liens or privileges or a
final judgment addressing disposition of those funds, and there was no written
agreement by the client or by respondent on behalf of the client guaranteeing
payment out of those funds. As such, the committee concluded respondent had no
obligation to pay those parties directly from his trust account.
Finally, the committee determined respondent’s backdating of the checks did
not violate Rule 8.4(c). The committee determined respondent’s decision to
backdate the checks “ was not meant to deceive ODC or for any other malicious
purpose.” Rather, the committee concluded he “backdated checks in the four matters
to keep his records orderly.”
In determining a sanction, the committee found the baseline sanction for the
Rule 1.15(a) violation was a suspension. It identified the following mitigating
factors: absence of a prior disciplinar y record, personal or emotional problems,
timely good faith effort to rectify the consequences of the misconduct, full and free
disclosure to the disciplinary board and a cooperative attitude toward the
proceedings, character or reputation, “acceptance of full responsibility of his

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actions,” and remorse. The only aggravating factor recognized by the committee
was respondent’s substantial experience in the practice of law , as he was admitted
to the bar in 1972.
Considering all these factors, the committee recommended respondent be
suspended from the practice of law for one year . It further recommended this
suspension be fully deferred and respondent be placed on supervised probation for a
period of two years , subject to conditions that respondent attend t rust account
training and submit to quarterly audits of his trust account.
The ODC filed an objection to the committee’s report, asserting that the
committee erred in finding that respondent did not violate Rules 1.15(d) and 8.4(c).

Recommendation of the Disciplinary Board
The disciplinary board determined that the hearing committee’s factual
findings regarding respondent’s mismanagement of his trust account were not
manifestly erroneous. By placing and holding client and third party funds in his
operating account, the board found respondent improperly commingled these funds
with his own funds and also converted the funds, thus violating Rule 1.15(a).
The board further determined the ODC failed to prove by clear and convincing
evidence that respondent’s failure to promptly pay third parties was a violation of
Rule 1.15(d). The board acknowledged Rule 1.15(d) was “not a model of clarity.”
However, the board found reasonable minds could conclude the obligation of prompt
payment was limited to instances where the third parties had one of the three types
of interests enumerated in the rule. Because it was undisputed the third parties had
no such interests in this case, the board found no error in the hearing committee’s
determination that respondent did not violate Rule 1.15(d).
Turning to Rule 8.4(c), the board placed emphasis on the hearing committee’s
finding that respondent was credible when he testified the backdating of checks in

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four matters was not meant to deceive the ODC or for any other malicious purpose.
The board found this determination was not manifestly erroneous and therefore
adopted the committee’s finding that respondent did not violate Rule 8.4(c).
The board found the baseline sanction for respondent’s violation of Rule
1.15(a) was suspension. It identified the following aggravating factors present: a
pattern of misconduct and substantial experience in the practice of law. In
mitigation, it found absence of a prior disciplinary record, personal or emotional
problems, timely good faith effort to rectify the consequences of the misconduct, full
and free disclosure to the disciplinary board and a cooperative attitude toward the
proceedings, character or reputation, and remorse.
Considering these factors, the board recommended that respondent be
suspended from the practice of law for one year, fully deferred, with a concurrent
two-year period of supervised probation subject to the same conditions
recommended by the committee.
The ODC filed an objection to the disciplinary board’ s r ecommendation.
Accordingly, we docketed the case pursuant to Supreme Court Rule XIX, §
11(G)(1)(b) and received briefs and oral argument from the parties.

DISCUSSION
The allegations of respondent fall into two broad categories: (1) trust account
mismanagement in violation of Rule 1.15; and (2) deceitful actions in connection
with the backdating of the checks, in violation of Rule 8.4(c). We will address these
issues in turn.

Trust Account Mismanagement
Rule 1.15(a) provides, “[a] lawyer shall hold property of clients or third
persons that is in a lawyer’s possession in connection with a representation separate

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from the lawyer’s own property.” Our jurisprudence has long recognized that “[a]
lawyer may not deposit his own funds in the trust account. . . .” Louisiana State Bar
Ass’n v. Hinrichs, 486 So. 2d 116, 121 (La. 1986).
The record in this case reveals the balance of respondent’s trust account
dropped below the amount he was holding in trust for pa yment of his client s and
third parties. Instead, he placed certain client and third party funds in his operating
account rather than in his trust account. In doing so, respondent clearly commingled
these funds with his own funds and effectively converted them to his own use.
While we acknowledge and accept the committee’s finding that respondent’s
actions were negligent rather than intentional, it is well settled that “[t]he attorney’s
mistake, good faith or lack of conscious wrongdoing may mitigate the offense, but
does not negate the infraction.” Hinrichs, 486 So. 2d at 122. Therefore, we find the
ODC proved a violation of Rule 1.15(a) by clear and convincing evidence.
Although the ODC also alleged respondent violated Rule 1.15(d) by failing to
promptly pay third parties, both the hearing committee and disciplinary board found
the ODC failed to establish a violation of this section by clear and convincing
evidence. Based on the specific facts presented and considering the lack of any
significant harm to clients or third parties, we see no error in the finding s of the
hearing committee and disciplinary board. Accordingly, we find no violation of
Rule 1.15(d).

Backdating of Checks
Rule 8.4(c) provides it is professional misconduct for a lawyer to “[e]ngage
in conduct involving dishonesty, fraud, deceit or misrepresentation.” The question
presented for our resolution is whether respondent’s backdating of certain third-party
checks was done with the intent of deceiving the ODC during its investigation.

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The record reveals the ODC’s auditor conducted an analysis of respondent’s
trust account for the period of time between September 2015 and February 2016. In
April 2017, following the completion of this audit, the ODC sent correspondence to
respondent explaining that a review of documents he submitted showed that multiple
third-party liabilities identified as withheld from client settlements were not
identified as paid during the audit period. T he ODC asked respondent to submit a
supplemental response addressing these concerns along with copies of the cancelled
checks deposited during the audit period. In response to the request, respondent
submitted four cancelled checks identified as paym ents to third- party providers.
These checks were dated as to appear to have been issued shortly after the respective
settlements.5 Notably, however, the sequence numbers of these checks were not
consistent with other checks written during the same time period, and the checks
were not processed until several months after their issuance date.
Respondent does not dispute that he backdated the checks, but has
consistently maintained he did so in good faith, in order to “make his matters appear
orderly with third-party vendors.” The hearing committee accepted respondent’s
version of events and made a factual finding that respondent’s actions were “not
meant to deceive ODC or for any other malicious purpose.” As a result, it declined
to find a violation of Rule 8.4(c).
In brief and argument to this court, the ODC contends the hearing committee’s
finding is clearly wrong and submits respondent acted with an improper intent in
backdating the checks. According to the ODC, respondent’s intent is clearly
revealed by his own testimony, in which he stated that he backdated the checks
because he “wanted to have it paid on dates that if anybody looked at my files later

5 Additionally, three checks were dated to suggest that they were issued during the 2015- 2016
audit period. The fourth check was outside of the audit period, but within two months of the
corresponding settlement.

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on, or even their files later on, if they subpoenaed the records, it would show that I
timely paid.”
Bar disciplinary matters come within the original jurisdiction of this court
pursuant to La. Const. art. V, § 5(B). Consequently, we are empowered to act as
triers of fact and conduct an independent review of the record to determine whether
the alleged misconduct has been proved by clear and conv incing evidence. In re :
Quaid, 1994-1316 (La. 11/30/94), 646 So. 2d 343, 348; Louisiana State Bar Ass’n
v. Boutall, 597 So. 2d 444, 445 (La. 1992) . In performing our review, w e have
recognized the hearing committee’s credibility findings are entitled to some degree
of deference. See In re : Bolton, 2002 -0257 (La. 6/21/02), 820 So. 2d 548, 553
(explaining that the hearing committee members act as “ the eyes and ears of this
court.”). Nonetheless, our decisions have made it abundantly clear that in the
exercise of our constitutionally-granted jurisdiction, we are not bound in any way by
the findings and recommendations of the hearing committee and disciplinary board.
See In re: Scheurich, 2003-3264 (La. 4/30/04), 871 So. 2d 1104, 1107.
Although respondent contends he backdated the checks to “make his matters
appear orderly with third-party vendors,” the ODC’s auditor testified that there was
no accounting reason to backdate checks. Indeed, rather than making the payments
more orderly, the backdating of the checks only served to interject confusion in the
matter and created the potential the checks might be dishonored as stale.
Moreover, respondent candidly admitted that “if they subpoenaed the records,
it would show that I timely paid.” This tes timony indicates respondent was
concerned with any potential investigation of his records and dated the checks to
make it appear he had made the payments shortly after the settlements had been
finalized.
Candor and honesty are a lawyer’s stock in trade. In re: Bernstein, 2007-1049
(La. 10/16/07), 966 So. 2d 537, 544 . While we recognize respondent provided the

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checks to the ODC voluntarily and did not attempt to hide the dates on which the
backdated checks in question cleared, his decision to backdate the checks reveals an
intent to mislead the ODC. The hearing committee was clearly wrong in finding to
the contrary. Accordingly, we find the ODC has established a violation of Rule
8.4(c) by clear and convincing evidence.

Sanction
Disciplinary proceedings are designed to maintain high standards of conduct,
protect the public, preserve the integrity of the profession, and deter future
misconduct. In re: Hingel, 2020-0992 (La. 11/10/20), 303 So. 3d 1029, 1032 . 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. In re: Smothers, 2020-0244 (La. 6/22/20), 297 So. 3d 743, 747. The
purpose of lawyer disciplinary proceedings is not so much to punish the attorney as
it is to maintain appropriate standards of professional conduct in order to protect the
public and the administration of justice . Louisiana State Bar Ass ’n v. Powell, 439
So. 2d 415, 417 (La. 1983).
Respondent’s failure to comply with Rule 1.15(a) and his mismanagement of
the trust account created a clear potential for serious harm. However, we
acknowledge that his shortcoming was the product of negligence rather than intent
and no clients or third parties suffered any actual harm as a result of his actions. We
have typically imposed fully -deferred suspensions of one year and a day coupled
with supervised probation in cases involving negligent trust account
mismanagement when there was little or no actual harm. See, e.g., In re: Alex, 2016-
1020 (La. 11/15/16), 205 So. 3d 895; In re: Spears, 2011-1135 (La. 9/02/11), 72 So.
3d 819; In re: Cicardo, 2004-0828 (La. 7/02/04), 877 So. 2d 980.

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Turning to the Rule 8.4(c) violation, we find the record supports the
conclusion there was no legitimate accounting purpose for respondent’s backdating
of the checks. Rather, his own testimony indicated that if his records were
subpoenaed, the backdated checks “would show that I timely paid.” Respondent’s
attempt to sanitize his records in the face of a potential disciplinary investigation
reveals a clear lack of honesty and candor.
We have recognized that knowingly deceitful and dishonest actions by a
lawyer can impede the fundamental responsibility of this court to assure the
protection of the public and to safeguard the administration of justice . See, e.g., In
re: Stamps, 2003-2985 (La. 4/14/04), 874 So. 2d 113, 124.
Standard 6.12 of the ABA Standards for Imposing Lawyer Sanctions states,
“[s]uspension is generally appropriate when a lawyer knows that false statements or
documents are being submitted to the court or that material information is
improperly being withheld, and takes no remedial action, and causes injury or
potential injury to a party to the legal proceeding, or causes an adverse or potentially
adverse effect on the legal proceeding. ” In this case, respondent submitted that he
knowingly backdated checks to the ODC during its investigation. When confronted
with the discrepancy in the dates, respondent insisted the backdating was done to
keep his records orderly, a contention which we do not find to be plausible. His
actions caused a potential for harm, both to the recipients of the backdated checks as
well as the disciplinary system. The baseline sanction for this misconduct is a
suspension.
In aggravation, we recognize a pattern of misconduct and substantial
experience in the practice of law. As mitigation, we find an absence of a prior
disciplinary record, personal or emotional problems, a cooperative attitude toward
the proceedings, good character and reputation, and remorse.

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Considering the facts and circumstances of this case in their entirety, we find
the appropriate sanc tion for respondent’s misconduct is a suspension from the
practice of law for a period of one year and one day. We will defer all but sixty days
of this suspension and place respondent on supervised probation for a period of two
years subject to the conditions identified by the hearing committee.

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 Kevi n C . Schoenberger, Louisiana Bar Roll number 11813 , be
suspended from the practice of law for one year and one day. It is further ordered
that all but sixty days of the suspension shall be deferred. Following the active
portion of the suspension, respondent shall be placed on supervised probation for
two years, subject to the following conditions: (1) he attend and successfully
complete the first available session of the Trust Accounting School sponsored by the
Louisiana State Bar Association; and (2) he submit to quarterly a udits of his trust
account during his two-year probationary period. 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 condition s 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.

S
UPREME COURT OF LOUISIANA
No
. 2021-B-00191
I
N RE: KEVIN C. SCHOENBERGER
AT
TORNEY DISCIPLINARY PROCEEDING
C
RICHTON, J., concurs in part, dissents in part, and assigns reasons.
I agree with the per curiam that respondent has violated the Rules of
Professional Conduct , solely as set forth therein. However, I disagree with the
sanction imposed, as I find it too harsh under the particular facts and circumstances
of this case. This case presents numerous mitigating factors, including absence of a
prior disciplinary record, personal or emotional problems, timely good faith effort
to rectify the consequences of the misconduct, character or reputation, and remorse.
I particularly note that respondent made a full and free disclosure to the disciplinary
board and a cooperative attitude toward the proceedings, factors which I consider to
weigh in favor of less harsh discipline. See, e.g., In re: Trieu, 19-1680 (La. 3/9/20),
290 So. 3d 658 ( Crichton, J., dissenting as to the sanction as “too harsh under the
particular circumstances of this case” where the respondent made a “full and free
disclosure” and displayed a “cooperative attitude toward proceedings”); In re:
Butler, 18 -1812 (La. 5/8/18), 283 So. 3d 455 ( Crichton, J., dissenting from the
sanction imposed as too harsh, finding significant mitigating factors the majority
failed to adequately consider). Consequently, I dissent from the majority’s sanction.
With respect to the charged violation of Rule 1.15(d), I agree with the per
curiam that there was no error in the findings of the hearing committee and
disciplinary board and find no violation here. I write separately to note that Louisiana
Rule of Professional Conduct 1.15(d) differs from ABA Model Rule 1.15(d). In my
view, the Bar and the Court should examine the language of Rule 1.15(d) to
06/30/2021

determine whether the language difference in the two rules results in unintended
consequences for lawyers, clients, and third parties.