                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                           NEWS RELEASE #057


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 19th day of October, 2016, are as follows:




PER CURIAM:


2016-B -0456      IN RE: EDWARD BISSAU MENDY

                  Upon review of the findings and recommendations of the hearing
                  committee and disciplinary board, and considering the record, the
                  brief filed by the ODC, and oral argument, it is ordered that the
                  name of Edward Bissau Mendy, Louisiana Bar Roll number 22117, be
                  stricken from the roll of attorneys and that his license to
                  practice law in the State of Louisiana be revoked. It is further
                  ordered that respondent shall make restitution to his victims.
                  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.

                  CLARK, J., dissents and assigns reasons.
                  CRICHTON, J., dissents in part and         would   impose   permanent
                  disbarment.
10/19/16

                       SUPREME COURT OF LOUISIANA

                               NO. 2016-B-0456

                       IN RE: EDWARD BISSAU MENDY


                ATTORNEY DISCIPLINARY PROCEEDING


PER CURIAM

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

Disciplinary Counsel (“ODC”) against respondent, Edward Bissau Mendy, an

attorney licensed to practice law in Louisiana, but currently suspended from

practice.



                       PRIOR DISCIPLINARY HISTORY

      Before we address the current charges, we find it helpful to review

respondent’s prior disciplinary history. Respondent was admitted to the practice of

law in Louisiana in 1993. In 2001, we suspended respondent from the practice of

law for six months, followed by six months of probation, for failing to competently

represent clients, neglecting and failing to expedite legal matters, failing to

communicate with clients, and failing to cooperate in the disciplinary proceedings.

In re: Mendy, 01-1462 (La. 8/31/01), 793 So. 2d 1225 (“Mendy I”). In 2012, we

suspended respondent from the practice of law for three years for neglecting legal

matters, failing to communicate with clients, failing to account for or refund

unearned fees, and failing to return client files.   In re: Mendy, 11-2275 (La.

2/17/12), 81 So. 3d 650 (“Mendy II”).           Respondent has not yet sought

reinstatement from his suspension in Mendy II and thus remains suspended from

the practice of law.
      Against this backdrop, we now turn to a consideration of the misconduct at

issue in the instant proceeding.



                              FORMAL CHARGES

                                      Count I

      On October 19, 2010, respondent issued a check in the amount of

$108,333.33 from his client trust account at Chase Bank, account number 5892.

The check, which was made payable to the Clerk of the United States District

Court, was returned due to insufficient funds. An investigation into the matter

revealed that respondent maintained at least two client trust accounts.

      Respondent submitted Trust Account Disclosure forms in 2006 and 2008-

2011. On his 2006 form, respondent stated that he did not maintain a trust account

due to the nature of his practice. From 2008 through 2010, respondent reported

that his law practice was domiciled in a state other than Louisiana and that he did

not maintain a trust account in Louisiana branches or multi-state branches. In

2011, respondent registered a client trust account with Chase Bank, account

number 0429. Bank statements for the account for the period of October 1, 2010

through December 31, 2010 reveal that respondent made several electronic

withdrawals and cash withdrawals; however, there was no notation that the

withdrawals were associated with a client matter.

      The ODC forwarded a notice of the associated disciplinary complaint to

respondent. He signed for the certified mail on February 15, 2011, but failed to

respond, necessitating the issuance of a subpoena compelling him to appear on

April 21, 2011. Despite being personally served with the subpoena, respondent

failed to appear for the sworn statement as scheduled.




                                          2
                                      Count II

      In November 2009, Gilbert Charles hired respondent to open and complete

the succession of his son, paying respondent $3,300. This amount included a $500

check that was issued to respondent’s firm, Mendy & Beekman, with the notation

“home health” in the memorandum line. According to Mr. Charles, respondent

had requested the payment, which would be applied towards a home health venture

respondent was pursuing. Respondent indicated to Mr. Charles that he would

credit the $500 towards his fee for handling the succession.

      Thereafter, respondent prepared a petition for appointment of administrator

and verification in the succession, but he never filed the petition or any other

pleadings in the matter. The decedent’s sister and the mother of the decedent’s

minor child filed petitions to open the succession. The cases were consolidated,

but there is no record that respondent took any action on behalf of Mr. Charles.

      Respondent received notice of the associated disciplinary complaint on

August 17, 2011, but he failed to respond.



                                     Count III

      In 2009, Cornell Platt entered into a contract to purchase a vehicle from a

used car dealership. The dealership agreed to accept Mr. Platt’s current vehicle as

a trade-in towards the purchase of another vehicle. Mr. Platt secured a loan for the

$7,000 balance owed and executed the trade of the vehicles. One month later, the

dealership repossessed the new vehicle and refused to return the trade-in vehicle.

      In March 2010, Mr. Platt retained respondent to represent him in the matter,

paying respondent $1,500. The attorney representing the finance company

admitted to making a mistake in the matter and offered $5,000 to Mr. Platt,

promising to correct any negative entries to Mr. Platt’s credit. Respondent advised

Mr. Platt to reject the offer and to proceed with filing suit.       In July 2010,

                                         3
respondent filed suit in the United States District Court for the Eastern District of

Louisiana. Thereafter, respondent failed to appear for the call docket and failed to

make proper service of process upon the defendants. In September 2011, the court

ordered respondent to show cause why the case should not be dismissed. The case

was subsequently dismissed with prejudice due to respondent’s failures.

      In March 2012, notice of the associated disciplinary complaint was

forwarded to respondent via certified mail at both of his bar registration addresses.

Both notices were returned marked “unclaimed.”



                       DISCIPLINARY PROCEEDINGS

      In September 2014, the ODC filed formal charges against respondent,

alleging that his conduct as set forth above violated the following provisions of the

Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent

representation to a client), 1.1(c) (a lawyer is required to comply with all of the

requirements of the Supreme Court’s rules regarding annual registration, including

proper disclosure of trust account information or any changes therein), 1.3 (failure

to act with diligence and promptness in representing a client), 1.4(a) (failure to

communicate with a client), 1.15(a) (safekeeping property of clients or third

persons), 1.16(d) (obligations upon termination of the representation), 8.1(c)

(failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the

Rules of Professional Conduct).

      Respondent failed to answer the formal charges. Accordingly, the factual

allegations contained therein were deemed admitted and proven by clear and

convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal

hearing was held, but the parties were given an opportunity to file with the hearing




                                          4
committee written arguments and documentary evidence on the issue of sanctions.

Respondent filed nothing for the hearing committee’s consideration.1



                                 Hearing Committee Report

       After considering the ODC’s deemed admitted submission, the hearing

committee determined the factual allegations in the formal charges were deemed

admitted; thus, the committee accepted the factual allegations as proven. Based on

those facts and the supporting evidence submitted by the ODC, the committee

found respondent violated the Rules of Professional Conduct as charged.

       The committee then determined that respondent violated a duty owed to his

clients, the public, the legal system, and the legal profession. Respondent acted

knowingly and intentionally, causing actual harm to his clients. Based on the

ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the

applicable baseline sanction is suspension.

       In aggravation, the committee found 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 the

disciplinary agency, refusal to acknowledge the wrongful nature of the conduct,

vulnerability of the victims, and indifference to making restitution. The committee

found no mitigating factors are present.

       After further considering this court’s prior jurisprudence addressing similar

attorney misconduct, the committee recommended respondent be suspended from

the practice of law for one year and one day.



1
   In an e-mail dated June 11, 2015, respondent advised the ODC, “since I have no desire or
intention of returning to the practice of law at this time, I do not see the necessity of taking up
ODC resources with the charges, I can respond to the charges if you need me to or can just
choose not to seek a reinstatement of my license. Needless to say, should I ever decide to
reinstate, you can always prosecute the charges.”


                                                5
      In its pre-argument memorandum to the disciplinary board, the ODC argued

that the baseline sanction is disbarment.



                       Disciplinary Board Recommendation

      After review, the disciplinary board determined the hearing committee’s

factual findings in this deemed admitted matter are supported by the factual

allegations in the formal charges and/or by the evidence submitted in support of

those allegations. Based on these findings, the board determined respondent

violated the Rules of Professional Conduct as alleged in the formal charges.

      The board then determined respondent knowingly, if not intentionally,

violated duties owed to his clients. His conduct caused substantial harm to Mr.

Charles, who paid respondent $3,300 to complete his son’s succession.

Respondent failed to take any action whatsoever in the matter, including failing to

file any pleadings with the court. He caused harm to Mr. Pratt, who paid $1,500 to

respondent to handle a breach of contract claim which was ultimately dismissed

with prejudice due to respondent’s failure to appear at a hearing and failure to

follow the court’s orders. Relying on the ABA’s Standards for Imposing Lawyer

Sanctions, the board determined the baseline sanction is suspension.

      The board agreed with the aggravating factors found by the committee and

also recognized the presence of substantial experience in the practice of law

(admitted 1993) and a prior disciplinary record as additional aggravating factors.

The board also agreed that no mitigating factors apply.

      Turning to the issue of an appropriate sanction, the board found guidance

from the case of In re: Hyman, 09-2652 (La. 5/7/10), 34 So. 3d 254. In Hyman, an

attorney neglected two legal matters, failed to communicate with two clients, failed

to return a client’s file upon termination of the representation, and failed to

cooperate with the ODC in its investigations. The attorney had been suspended in

                                            6
2007 for failing to return client files upon termination of the representations and

failing to cooperate with the ODC in two investigations. Several aggravating

factors were present and no mitigating factors applied. The court suspended the

attorney from the practice of law for three years.

       After considering respondent’s prior disciplinary record and the court’s prior

jurisprudence addressing similar attorney misconduct, a majority of the board

recommended respondent be suspended from the practice of law for three years,

pay restitution to the complainants, and return all documents and files in his

possession. One board member dissented and would recommend that respondent

be disbarred.

       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). Respondent did not appear for oral argument, nor did he

file a brief in this court. 2 In its brief, the ODC argued that permanent disbarment is

the appropriate sanction for respondent’s misconduct.



                                       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




2
  After the case was taken under advisement, respondent filed a motion captioned “Motion for
New Trial and in the alternative to be Allowed to Surrender License with[out] the Necessity of
Disciplinary Action,” alleging he had not received notice of the formal charges and seeking a
remand of this matter for a new hearing. The ODC filed a response in which it provided
documentary support demonstrating respondent received proper notice of the charges.
Considering the motion, we find no basis to remand the case, as the ODC has shown respondent
received adequate notice of the formal charges. Alternatively, respondent’s motion requests that
he be allowed to voluntarily relinquish his law license. Upon receipt of the motion, the ODC
provided respondent with an opportunity to resolve the matter through permanent resignation in
lieu of discipline pursuant to Supreme Court Rule XIX, § 20.1 or by other consent motion.
Respondent ultimately declined to pursue these options. Accordingly, respondent’s motion is
hereby denied in its entirety.

                                               7
been proven by clear and convincing evidence.          In re: Banks, 09-1212 (La.

10/2/09), 18 So. 3d 57.

      In cases in which the lawyer does not answer the formal charges, the factual

allegations of those charges are deemed admitted. Supreme Court Rule XIX, §

11(E)(3).   Thus, the ODC bears no additional burden to prove the factual

allegations contained in the formal charges after those charges have been deemed

admitted.   However, the language of § 11(E)(3) does not encompass legal

conclusions that flow from the factual allegations. If the legal conclusion the ODC

seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the

deemed admitted facts, additional evidence may need to be submitted in order to

prove the legal conclusions that flow from the admitted factual allegations. In re:

Donnan, 01-3058 (La. 1/10/03), 838 So. 2d 715.

      The evidence in the record of this deemed admitted matter supports a finding

that respondent neglected legal matters, failed to refund unearned fees, and failed

to cooperate with the ODC in its investigations. Based on these facts, respondent

has violated the Rules of Professional Conduct as alleged in the 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).

      Respondent knowingly, if not intentionally, violated duties owed to his

clients, the legal system, and the legal profession, causing actual harm.        The

                                          8
baseline sanction for this type of misconduct is suspension. The record supports

the aggravating factors found by the disciplinary board. No mitigating factors are

present.

      While we agree that this case shares many similarities with Hyman, which is

the primary case relied upon by the disciplinary board, we find respondent’s

misconduct much more troubling. Respondent accepted legal fees from his clients

and then abandoned their legal matters without doing any work. He also failed to

refund the unearned fees, which total more than $4,800. Because respondent has

received two prior suspensions, both of which include misconduct that is similar in

kind to the misconduct that is present in the instant case, we are hard pressed to see

how respondent has made any serious effort to ensure his compliance with the

Rules of Professional Conduct.         Therefore, considering the totality of the

circumstances in this matter, including the numerous aggravating factors that are

present, we find that the board’s recommendation of a three-year suspension is

unduly lenient and that respondent must be disbarred.



                                       DECREE

      Upon review of the findings and recommendations of the hearing committee

and disciplinary board, and considering the record, the brief filed by the ODC, and

oral argument, it is ordered that the name of Edward Bissau Mendy, Louisiana Bar

Roll number 22117, be stricken from the roll of attorneys and that his license to

practice law in the State of Louisiana be revoked.        It is further ordered that

respondent shall make restitution to his victims. 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.



                                          9
10/19/16




                    SUPREME COURT OF LOUISIANA

                               No. 2016-B-0456

                     IN RE: EDWARD BISSAU MENDY


               ATTORNEY DISCIPLINARY PROCEEDING


Clark, J., dissents and assigns reasons.

      I find permanent disbarment to be a more appropriate sanction

for respondent’s misconduct.
10/19/16



                     SUPREME COURT OF LOUISIANA

                                 No. 2016-B-0456

                      IN RE: EDWARD BISSAU MENDY


                ATTORNEY DISCIPLINARY PROCEEDING


CRICHTON, J., dissents in part and assigns reasons.

      I would impose permanent disbarment under the particular circumstances of

this case. Respondent failed to answer the ODC’s recent charges, failed to file a

response for the hearing committee’s consideration, failed to file a brief in

response to this Court’s briefing notice, and failed to appear at this Court’s oral

argument.

      Further, Respondent recently claimed, in a motion to this Court, that he did

not receive notice of this matter. This unsupported claim is contradicted by the

actual evidence in the record. The disciplinary board’s records indicate that notice

was sent to Respondent at three separate addresses, and all were returned as either

unclaimed or not deliverable. After these attempts, the ODC sent Respondent an e-

mail and ultimately made contact with him by telephone to advise him of the

attempts to serve him with notice of the formal charges. Further, when the

disciplinary board sent notice of the formal charges to Respondent by certified

mail, the board received the signed return card from his address.

      In my view, Respondent’s evident lack of interest in defending these serious

charges against him, coupled with his past sanctions, has no place in this noble

profession. I therefore respectfully disagree with the majority’s imposition of

disbarment, and would instead permanently disbar Respondent.
