In Re: Joseph B. Morton, III

Supreme Court of Louisiana
March 15, 2022
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: JOSEPH B. MORTON, III
No. 2022-B-00029
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IN R
E: Office of Disciplinary Counsel (ODC) - Applicant Other; Findings and
Recommendations (Formal Charges);
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March 15, 2022
Suspension imposed. See per curiam.
Genovese, J., dissents.
JDH
JLW
SJC
WJC
JBM
PDG
03/15/2022 "See News Release 011 for any Concurrences and/or Dissents."

03/15/2022
SUPREME COURT OF LOUISIANA

NO. 2022-B-0029

IN RE: JOSEPH B. MORTON, III

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent , Joseph B. Morton, III , an
attorney licensed to practice law in Louisiana.

UNDERLYING FACTS
By way of background, respondent was formerly a partner of the Forman
Watkins law firm in New Orleans, where his primary responsibility was the defense
of Ingersoll Rand and its subsidiary, Trane, in asbestos claims matters. On October
1, 2015, several attorneys and staff departed Forman Watkins to join the
Wilmington, Delaware law firm of Maron Marvel Bradley Anderson & Tardy, LLC
(“MMBAT” or the “firm”). Respondent joined MMBAT as a salaried, non-equity
partner on the date of the merger and was placed in charge of the day -to-day
operations of MMBAT’s New Orleans office. In addition, respondent continued to
represent Ingersoll Rand and Trane.
In October 2017, MMBAT filed a complaint against respondent with the
ODC. The complaint alleged that on September 13, 2017, the firm learned that
respondent had billed Ingersoll Rand and Trane for depositions that he either did not
attend or that he attended by telephone but nonetheless billed for travel. The next
day, when members of the firm met with respondent, he admitted that he may have
billed for travel time and mileage when he took depositions by telephone, and that

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he may have billed for depositions which he did not attend, but he claimed that any
errors were caused by sloppy billing practices. MMBAT terminated respondent that
day and began to investigate the matter further. It was ultimately determined that
respondent had improperly billed $10,316.27 in travel time and expenses for thirteen
depositions. As of February 12, 2020, the date of the filing of the formal charges,
respondent had not paid any restitution; however, on October 24, 2020, he mailed a
check to MMBAT in the amount of $2,116.2 7, representing repayment of
improperly claimed travel expenses.
In his answer to the complaint, respondent admitted that, partially in response
to managerial demands and to accommodate MMBAT’s billing protocols, he had
adopted a practice of “pre -billing” for depositions based on projected time for
preparation and participation, and submitting reimbursement requests for anticipated
travel expenses. Respondent indicated that he would sometimes be required to
change his plans and attend a deposition by telephone due to staffing shortages or
other work commitments that precluded travel, or his appearance at a deposition
would be cancelled altogether. Nevertheless, respondent admitted that he had no
process in place for reconciling his pre -billed time to acc ount for such changes in
circumstances, thereby leading to some overcharges of fees and travel expenses.
Respondent conceded he exercised poor judgment in these instances but denied that
he engaged in any intentional overbilling.

DISCIPLINARY PROCEEDINGS
The formal charges filed by the ODC against respondent allege that his
conduct as set forth above violated Rules 1.5(a) (a lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an unreasonable amount for
expenses), 8.4(a) (vi olation of the Rules of Professional Conduct) , and 8.4(c )
(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of

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the Rules of Professional Conduct. Respondent timely answered the formal charges.
Following the filing of respondent’s answer, the matter was set for a formal hearing
before the hearing committee.

Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the
hearing committee made the following factual findings:
1. Respondent submitted improper bills to a client that included attendance at
depositions in which he did not participate and for mileage where he either
did not participate or participated by phone, obviating the need for travel
expense reimbursement.
2. On several oc casions, respondent prepared his time and expense sheets in
advance based on his upcoming calendared depositions. However, when
some of the planned depositions were cancelled or changed to a telephone
appearance, respondent failed to remove several of the depositions from his
time and expense sheets.
3. Respondent had an opportunity to correct entries on his pre -bills before the
final bills were submitted to the client, but due to his volume of work, he failed
to recognize and remove the improper entries. As a result, the client was
improperly billed for the entries.
4. MMBAT suffered actual harm, having reimbursed Ingersoll Rand $35,529.71
as a result of respondent’s improper time and expense entry practices. The
firm took a broad approach in reimbursing Ingersoll Rand and appears to have
reimbursed the client for several of respondent’s billing entries that were not
erroneous. It was later determined through discovery that respondent’s
improper billing totaled $10,316.27, not $35,529.71.

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5. MMBAT also lost Inger soll Rand as a client; however, it could not be
determined whether this occurred strictly because of respondent’s actions, as
Ingersoll Rand moved its business from MMBAT’s New Orleans office well
before discovering any irregularities in respondent’s billing practices.
6. Respondent acknowledged that he owed restitution to MMBAT. Respondent
and the ODC established a due date of January 15, 2018 for respondent to pay
$2,116.27 in restitution for improperly billed travel expenses. As of October
23, 2020, the date of the hearing, respondent had not paid restitution. The
committee found this troubling but took into consideration respondent’s
cooperation with the ODC and his inability to find gainful employment
following his termination. Therefore, the committee agreed to keep the record
open for two weeks to accept evidence of respondent’s promised restitution
payment. A payment of $2,116.27 was made to MMBAT on October 24,
2020 and evidence of same is in the record.
Based on these findings, the committee determined respondent violated Rules
1.5(a), 8.4(a), and 8.4(c) of the Rules of Professional Conduct as charged.
The committee found that respondent violated duties owed to his clients, the
firm, the legal system, and the legal profession. He acted negligently. Respondent’s
misconduct did not cause harm to his clients but did cause actual harm to MMBAT,
which reimbursed the clients for his improper billing. The applicable baseline
sanction is suspension.
The committee found the following aggravating factors are present: a pattern
of misconduct, substantial experience in the practice of law (admitted 1988), and
“delayed attempt to make restitution.” The committee found the following
mitigating factors are present: absence of a prior d isciplinary record, a cooperative
attitude toward the disciplinary proceedings, and remorse. The committee also noted
that respondent “has finally remitted the restitution payment.”

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Turning to the issue of an appropriate sanction, the committee noted that prior
cases suggest a one year and one day suspension would be appropriate for
respondent’s misconduct. In In re: Moser, 10 -1777 (La. 9/24/10), 44 So. 3d 270,
the respondent could not keep up with her firm’s billable hour requirement because
of significant medical issues. On one occasion, she was scheduled to attend an in-
person pre-trial conference but she overslept due to her medical issues and missed
the conference. For fear of losing her job, the respondent submitted time and
expenses as though she had attended the conference. Her false submission was
detected and the client was never billed. She was suspended for one year and one
day, fully deferred, subject to a period of probation. Additionally, in In re: Wallace,
17-0525 (La. 9/22/17), 232 So. 3d 1216, the respondent submitted false and inflated
billing records due to a lack of billable work in his practice area of his firm, and
because he had ambitions to become the managing partner of the firm. The
respondent intercepted the billings before they were sent to the client; nevertheless,
the false and inflated entries were used for bonus incentives, causing the firm
financial harm. The respondent was suspended for thirty months, with all but twelve
months deferred.
The committee found that although these cases are factually similar to the
instant matter, respondent did not act intentionally in billing time and expenses for
the depositions he did not attend or attended by telephone, nor did he submit the bills
for personal gain. Rather, respondent posted time and expense entries in advance of
the calendared depositions. He then failed to delete them from the pre -bills when
the depositions were cancelled or changed because he was overwhelmed with work
and did not recognize the improper entries. D ue to respondent’s negligence in this
regard, the committee concluded the appropriate sanction is a fully deferred six-
month suspension.

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Based on this reasoning, the committee recommended that respondent be
suspended from the practice of law for six months, fully deferred, subject to a six -
month period of probation. The committee also recommended that respondent be
assessed with all costs of this proceeding.
Neither respondent nor the ODC filed an objection to the hearing committee’s
report. Having recei ved no objections, the disciplinary board submitted the
committee’s report directly to the court for consideration pursuant to Supreme Court
Rule XIX, § 11(G). On April 27, 2021, we remanded the matter to the board for
further review.

Disciplinary Board Recommendation
On remand, the disciplinary board determined that the hearing committee’s
factual findings are not manifestly erroneous and adopted same. The board also
made its own factual findings, as follows:
1. Respondent submitted erroneous time and tra vel expense billing entries
pertaining to thirteen deposition matters.
2. Respondent received a financial gain for his improper billing of travel
expenses, for which he has paid restitution to the firm in the amount of
$2,116.27.
3. Respondent received no financial gain for his erroneous time entries.
4. As the resident partner in charge of the firm’s New Orleans office, respondent
was a salaried employee, and his compensation never depended upon hourly
production. Moreover, he was not an equity partner nor did he share in an
equity distribution at the end of the year based on the total billings of the firm
for the year.

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Based on the factual findings, the board agreed with the committee that
respondent violated the Rules of Professional Conduct as charged. The boar d also
determined that respondent does not owe any additional restitution to MMBAT.
The board determined that respondent violated duties owed to his clients, the
firm, and the profession. He acted negligently. Respondent’s conduct did not cause
actual harm to his clients but did cause actual harm to the firm. Pursuant to the
ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction
is suspension.
In aggravation, the board found respondent engaged in a pattern of
misconduct and has substantial experience in the practice of law. The board found
the following mitigating factors are present: absence of a prior disciplinary record,
absence of a dishonest or selfish motive, full and free disclosure to the disciplinary
board and a cooper ative attitude toward the proceedings, and remorse. The board
noted that under the ABA Standards, respondent’s payment of restitution after the
hearing is neither an aggravating nor a mitigating factor.
Turning to the issue of an appropriate sanction, the board observed that prior
cases demonstrate the sanction for improperly recording fees and/or expenses ranges
from a brief suspension to permanent disbarment, depending upon various factors,
including the mental element and the damage sustained. After r eviewing similar
cases that typically involved knowing or intentional misconduct, the board reiterated
that respondent’s conduct was negligent and was caused by his being overwhelmed
with work at the firm. Given these facts, and the mitigating factors present, the board
determined that the fully -deferred suspension recommended by the hearing
committee is appropriate.
Accordingly, the board recommended that respondent be suspended from the
practice of law for six months, fully deferred, subject to a six-mo nth period of

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probation. The board also recommended that respondent be assessed with all costs
of this proceeding.
Neither respondent nor the ODC filed an objection to the disciplinary board’s
recommendation.

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 violated Rules 1.5(a), 8.4(a), and 8.4(c) of th e Rules of
Professional Conduct by billing his clients for depositions he did not attend and
billing travel and mileage expenses for depositions he took by telephone. Although
this conduct occurred for approximately eighteen months after respondent joined
MMBAT, he denies that his actions were intentional or that he acted for personal
gain. Rather, respondent testified that he posted his time and expense entries in
advance of the calendared depositions and, because he was overworked, he failed to
delete them from the pre-bills when the depositions were cancelled or changed. The
hearing committee made a finding that respondent’s conduct was negligent and thus
it appears his explanations in this regard were accepted as credible. We cannot say
this finding is clearly wrong, given the record before the court. See In re: Bolton,
02-0257 (La. 6/21/02), 820 So. 2d 548 (“Although this court is the trier of fact in bar

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disciplinary cases, we are not prepared to disregard the credibility evaluations made
by those committee members who were present during respondent’s testimony and
who act as the eyes and ears of this court.”).
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).
Respondent violated duties owed to his clients and the legal profession. He
caused actual harm to MMBAT, which reimbursed the clients for the improper
billing. The applicable baseline sanction is suspension.
The record supports the following aggravating factors: a pattern of
misconduct and substantial experience in the practice of law. The mitigating factors
are the absence of a prior disciplinary record, a cooperative attitude toward the
disciplinary proceedings, and remorse. The disciplinary board correctly noted that
respondent’s payment of restitution after the hearing is neither an aggravating nor a
mitigating factor.
Turning to the issue of an appropriate sanction, we agree that a short period
of suspension, fully deferred, is appropriate for resp ondent’s misconduct. There is
no evidence that respondent was engaged in any type of “scheme” in submitting the
erroneous bills, or that he intended to obtain any personal gain thereby. To the extent
that respondent did receive a financial gain for his improper billing of travel
expenses, he has paid restitution to the firm.

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Considering the facts of this case, as well as the absence of any objection by
the ODC, we will adopt the board’s recommendation and impose a six-month
suspension, fully deferred, subject to a six-month period of probation.

DECREE
Upon review of the findings and recommendations of the hearing committee
and the disciplinary board , and considering the record, it is ordered that Joseph B.
Morton, III, Louisiana Bar Roll number 19072, be and he hereby is suspended from
the practice of law for a period of six months. This suspension shall be deferred in
its entirety, subject to respondent’s successful completion of a six -month period of
probation governed by a probation plan. The probationary period shall commence
from the date that 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 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.