I
LOUISIANA ATTORNEY DISCIPLINARY BO""""'I~_
IN RE: JOHN CUCCI, JR.
NUMBER 09-DB-014
RECOMMENDATION TO THE LOUISIANA SUPREME COURT
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This is a disciplinary proceeding based on the filing of formal charges by the Office of
Disciplinary Counsel ("ODC") against John Cucci, Jr. ("Respondent" or "Mr. Cucci") of New
York, an attorney licensed to practice law in the State of Louisiana (La. Bar No. 25016).1
Respondent is currently ineligible to practice law. 2 For reasons stated below, the Disciplinary
Board ("Board") recommends that the Respondent be suspended from the practice of law for
three years, with six months deferred. The Board recommends that he provide a full accounting
to each of the complainants and that he refund all unearned fees, as determined by an arbitrator.
The Board also recommends that Mr. Cucci be assessed all costs and expenses associated with
these proceedings in accordance with Rule XIX, Section IO.I(A).
PROCEDURAL HISTORY

Formal charges, consisting of nine (9) counts, were filed by ODC against Respondent, on
March 20, 2009 in case number 09-DB-OI4. In the charges, ODC alleges that the Respondent
violated several Rules of Professional Conduct, including Rule 1.3 (failing to act with reasonable
diligence and promptness in representing a client); Rule 1.4 (failing to reasonably communicate

Mr. Cucci, Ir. was admitted to practice in New York on March 3, 1993; admitted in Louisiana on November 26,
1997; and admitted in Texas on May 3, 2001.

I

As of the date ofthe signing of this recommendation, Mr. Cucci is ineligible to practice law due to his failure to
fulfill his 2010 MCLE requirements, failure to pay his 2011 LSBA dues and failure to pay his 2011 LADB
assessment.

2

 with client); Rule 1.5 (charging an unreasonable fee); Rule 1.5(f)(5) (failing to refund an
unearned fee); Rule 1.15 (failing to provide an accounting of client funds upon request); Rule 3.1
(asserting non-meritorious claims and contentions); Rule 3.4(c) (knowingly disobeying a lawful
order of a tribunal); Rule 8.1(c) (failing to cooperate with disciplinary authorities); Rule 8.4(b)3
(commission of a criminal act); Rule 8.4(c) (engaging in conduct involving dishonesty, fraud,
deceit and misrepresentation); and Rule 8.4(d) (engaging in conduct that is prejudicial to the
administration of justice), in connection with his representation of several clients in criminal
matters. The charges were served on the Respondent, via certified mail, on or about April 9,
2009.

On March 5, 2010, ODC filed supplemental and amending formal charges which

amended Counts V and IX of the formal charges. The amended charges were served on the
Respondent, via certified mail, on or about March 15,2010. The Respondent filed an answer to
the charges on October 12, 2010, denying that he violated the Rules of Professional Conduct as
charged. This matter was scheduled for hearing before Hearing Committee No.4 on January 18,
2011. After the Respondent requested that the hearing be continued to complete discovery, the
hearing was continued to March 15-16, 2011.
On March 1, 2011 Respondent filed a prehearing memorandum.

ODC filed its

prehearing memorandum on March 2, 2011. The hearing was held as scheduled on March 1516,2011 before Hearing Committee No. 4. 4 The Committee considered the exhibits which were
admitted (ODC Exhibits 1-65 and Respondent's Exhibits 1-7), as well as the testimony of the
following witnesses: Marguerite Wenk, Jason Wenk (by deposition), Jeffrey Winn (by

The fonnal charges allege a violation of "Rule 8.3(a) (commission of a criminal act)", however the incorrect rule
appears to have been cited as Rule 8A(b) applies to the commission of a criminal act while Rule 8.3(a) applies to
reporting of professional misconduct. It appears that ODC meant to charge Rule 8ACb) (commission of a criminal
act).

3

Hearing Committee No. 04 is comprised of committee chairman Walter D. White, lawyer member Jeffrey Little
and public member Brice Wilson.

4

2

 deposition), Dr. F.G. Mears (by telephone), Jason Brown, Patricia Hunter Crow, Tony Hunter
(by deposition), John Floyd, Jr., Doris Whitty, Roosevelt Whitty, Adrian Lee, Labruce Snow (by
telephone), and Respondent.
On April 15,2011, Committee Chairman Mr. White issued an order directing that certain
exhibits of the ODC be redacted to remove the social security numbers and financial account
numbers of various individuals. ODC was ordered to file supplemental and amending exhibits in
accordance with the order. ODC complied with the order on April 20, 2011.
The Committee issued its report on April 21, 2011, finding that the Respondent had
violated the Rules of Professional Conduct as follows:
Count I: Ru1e 1.15(a)(b)(c)(f) (failure to deposit client funds in a trust account and to
properly account for those funds; failure to refund unearned fees following discharge
and prior to case completion, and failure to refund fees as found by a neutral arbitrator.)
Count II: Rule 1.5 (a) (collecting an unreasonable fee for the filing ofwrit deemed to be
untimely and useless to the client; (f) (failure to deposit client funds in a trust account,
failure to failure to remit funds to a client, and failure to provide an accounting of funds
retained and allegedly expended or retained.)
Count 1lI: The committee found that the burden of proof was not met by ODC as to
Count III.
Count N: Rule 1.4 (a) (b) (failure to communicate with a client about the objectives,
failure to keep the client reasonably informed, failure to promptly comply with requests
for information, and failure to provide sufficient information to participate intelligently
in decisions), and 1.5(f) 4 (failure to render an account for funds paid in advance).
Count V: Rule 1.5(a) (charging an unreasonable fee, failure to account for funds, failure
to cooperate in dispute resolution, and failure to refund fees as ordered).
Count VI: The committee found that the burden of proof was not met by ODC as to
Count VI.
Count VII and VIII: Rule 8.1(c) (failure to cooperate with the Office of Disciplinary
Council in its investigation of any matter before it).

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 Count IX: The committee found that Respondent violated Rule 8A(c) (engaging in
conduct involving dishonesty, fraud, deceit and misrepresentation) as to funds of the
client and fees.

The Committee recommended that the Respondent be suspended from the practice of law
for five (5) years, without deferral, and that he complete courses in trust accounting with the Bar
Association prior to being allowed to practice in Louisiana. The Committee recommended that
if Respondent does return to the practice oflaw in Louisiana, that he be monitored by a probation
monitor for an unspecified period of time. The Committee also recommended that he provide a
full accounting to each of the complainants and that he refund all fees, as determined by an
arbitrator. The Committee further recommended that he be charged with all costs and expenses
of these disciplinary proceedings.
On June 13, 2011, Respondent filed his Objections to the Committee Hearing Report
stating, among other arguments, that a one year suspension, fully deferred with probation, is the
appropriate sanction. ODC filed its post hearing brief on the same day. On June 13, 2011,
Respondent filed an unopposed motion to participate in the June 30, 2011 oral arguments before
the Board via telephone. The motion was granted on June 15,2011. Oral argument before Panel
"B" of the Adjudicative Committee of the Disciplinary Board was held on June 30, 2011.
Deputy Disciplinary Counsel Robert S. Kennedy, Jr. appeared on behalf of ODC. Respondent
made his appearance via telephone from New York where he currently resides.
THE FORMAL CHARGES

The amended formal charges in this matter read, in pertinent part, as follows:

COUNT I
In 2004, the Respondent, John Cucci, Jr., was retained to represent Jason
Wenk who was charged with four felony counts of robbery, kidnapping and drug
possession in Caddo parish. The original fee arrangement called for the
Respondent to be paid $10,000 for pre-trial preparation and motions and an

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 additional $2,500 for each case when it was ultimately tried. Ultimately the
Respondent was paid $20,075 for the representation.
Only one of the four cases ultimately went to trial, resulting in a hung jury
and a mistrial. This charge was later dismissed. Two of the remaining charges - a
simple robbery and drug offense - were later dismissed as well without trial. The
client discharged the Respondent on January 30, 2007 - prior to the final
disposition of any of the charges - and later pleaded guilty to First Degree
Kidnapping.
The client filed a disciplinary complaint, specifically alleging that the
Respondent had failed to refund the unearned fees. The Respondent answered the
complaint, asserting that the entire fee had been fully earned.
By his acts and omissions, the Respondent has knowingly violated Rule
1.5 (f)(5) (failure to refund unearned fees).
In his complaint, the client also asked the Respondent to provide an
accounting for the portion of the payments to be used for payment of costs and
expenses in hiring experts. The Respondent failed to do so, and was called to
ODC offices in Baton Rouge and asked to produce an accounting together with
cancelled checks and other financial documents which he is required by law to
maintain. He appeared but failed to produce either the requested documentation
or an accounting. ODC was obliged to subpoena trust account records from the
Respondent's bank account in an effort to determine what had been done with the
client's funds.
By his acts and omissions Respondent has knowingly violated Rule 1.15
(failure to account) and 8.1(c) (failure to cooperate with disciplinary authorities).
In his sworn testimony to ODC, the Respondent also gave false and
misleading testimony to the effect that the client's file had been returned to the
client's mother, when in fact nothing of the sort had ever occurred. The
Respondent has violated 8.4 (c) (conduct involving dishonesty, fraud, deceit and
misrepresentation).
COUNT II
The complainant, Jeffrey Winn hired the Respondent in December 2005,
after being charged with second degree murder in Caddo parish. After the client
was paid $36,000 from an insurance settlement (with the check being sent to the
Respondent), the parties agreed that a fixed fee of $30,000 would be paid to the
Respondent from the proceeds. After a jury trial lasting two days - in which the
defense called the defendant as his only witness - the client was convicted and
incarcerated. Respondent has knowingly charged an excessive fee in violation of
Rule 1.5.
Respondent also collected $8,041.00 from a Texas forfeiture proceeding
on a one-third contingency fee basis. The client asserts that he never received the
balance of the funds nor did he receive an accounting which he requested in
writing. The Respondent has never produced an accounting of the funds to the
Office of Disciplinary Counsel despite being asked to do so. The Respondent has
since closed his trust account, left the state of Louisiana and relocated to the state
of New York.

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 By his acts and omissions, the Respondent has violated Rule 1.15 (failure
to account and conversion of client funds).
COUNT III
The Respondent was the passenger and owner of a vehicle stopped by
officers of the Shreveport police department on October 10, 2007. The
investigating officer conducted a visual inspection of the interior of the vehicle
and found suspected marijuana on the floorboard in front of the seat where the
Respondent was seated. The other occupants of the car identified the substance as
belonging to the Respondent. The substance was later analyzed and determined
to be marijuana by the Northwest Louisiana Criminalistics laboratory.
The Respondent was later offered and accepted diversion status by the
Caddo parish district attorney's office conditioned upon his successful completion
of probation which included the express provision that he refrain from using illicit
In June 2008 the Respondent was
drugs during the probationary period.
subjected to a random drug screen and tested positive for marijuana. The
Respondent was unsatisfactorily discharged from the diversion program and the
charges were returned to the court's docket.
In sworn testimony to the Office of Disciplinary Counsel, the Respondent
testified that the charges had been "dismissed," which proved not to be entirely
candid and true.
By his acts and omissions the Respondent has violated Rule. 8.3(a)
(commit a criminal act) and 8.1 (c) (failed to cooperate with disciplinary
authorities).
COUNT IV
In January 2007, Patricia Ann Hunter Crow retained the Respondent and
paid him $756.00 to visit her son, Tony Hunter, who was incarcerated at Angola
and determine whether Mr. Cucci could provide any useful legal services. The
Respondent thereafter failed to visit the inmate and refused to communicate with
the client's mother or return the fee. Ms. Crow advised ODC that shortly after
retaining him, she made several trips to Shreveport from her home in Mouroe to
retrieve her son's file, but the Respondent was never in the office and would not
return her telephone calls.
By his acts and omissions, the Respondent has violated Rule 1.3
(diligence); Rule 1.4 (failure to communicate) and 1.5 (£)(5) (failure to refund an
unearned fee.
COUNT V (as amended)
John Floyd pleaded guilty to one count of Aggravated Criminal Damage to
property on January 7,2002 in Fourth District Court (Ouachita parish). As part of
his sentence, he was sentenced to five years' incarceration, suspended, and placed
on a three-year supervised probation with specified conditions. In October 2004,
the defendant was arrested on a felony charge of convicted felon in possession of
a firearm after a search of the motor vehicle he was driving revealed the presence

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 of a firearm inside the vehicle. On February 1, 2005, a probation revocation
hearing was held before Fourth District Judge Benjamin Jones and the court
ordered the Respondent's probation revoked and that he serve the five year
sentence originally imposed.
Thereafter, the Respondent filed a Pleading denominated "Motion and
Order to Set-Aside Probation Revocation Order and Terminate Execution of
Sentence," asking the trial court to set aside its prior judgment revoking his
probation, which Judge Jones declined to do pursuant to an order dated August
15,2005. The defendant promptly filed writs of review with the Court of Appeal
seeking to reverse Judge Jones's order. On September 22, 2005, the Court of
Appeal denied the defendant's writ of review. 5
In early 2006, the defendant's parents, Doris and Roosevelt Whitty,
retained the Respondent to represent their son and obtain his release from jail and
signed a written contract to that effect. The Respondent was paid his agreed-upon
fee of $3500. The Respondent expressly advised them that an application for
post-conviction relief was an available and appropriate vehicle to secure Mr.
Floyd's release and that although outside the applicable time limits for filing such
a motion, he intended to rely on an "exception" to the procedural bar to obtain
relief. He conspicuously neglected to mention to them that their son's prior pro se
application on identical grounds rendered any subsequent application on those
same issues wholly untenable. Instead, he induced them to believe that the
prospective application had, at minimum, a plausible chance of success. ODC
charges that that the Respondent's communications with Mr. and Mrs. Whitty on
this issue were intentionally deceptive and violated Rule 8.4 (c).
On March 21, 2006, the Respondent filed an admittedly out-of-time
application for post-conviction relief. As previously noted, the factual claims
contained in the application were identical in every material respect to those
raised in the 2005 application filed by the defendant pro se, and were thus barred
by the Code of Criminal Procedure's prohibitions against repetitive and
duplicative applications. Predictably, the trial court summarily denied the
application without hearing on March 23, 2006.
Thereafter Mr. and Mrs. Whitty conferred with the Respondent about
filing writs of review with the appeals court, but the Respondent refused to
proceed without the payment of an additional fee. The complainants then filed a
disciplinary complaint with the ODC, alleging that the Respondent had not earned
the $3500 he had previously received. To address the complainants' objections
the Respondent agreed to submit the fee issue to the Louisiana State Bar
Association fee dispute resolution program. After hearing the evidence, the
Arbitrator ordered the Respondent to return the entire fee. The Respondent did
not appeal the arbitrator's ruling. Instead after making a partial payment of $500

5 State ofLa. v. John M Floyd, Jr. No. KHQ5-4Q704, Court of Appeal Second Circuit (9/22/05).

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 towards the award (under protest), the Respondent ceased making payments and
refused to respond to the complainant's inquiries any further.
By his acts and omissions, the Respondent has knowingly violated Rules
1.4 (communication); 1.5 (excessive fee); 1.5(f) (5) (unearned fee); 3.1
(meritorious claims and contentions); and 8.4 (c) (conduct involving dishonesty,
fraud, deceit and misrepresentation).
COUNT VI
The Respondent was appointed by the U.S. District Court for the Western
District of Louisiana to represent a criminal defendant, Charles Gillespie.
Thereafter the defendant was convicted and when the Respondent failed to appeal
the conviction, on April 3, 2008 the U.S. Fifth Circuit Court of Appeals ordered
the Respondent either to file an Anders brief or a brief on the merits or
alternatively show cause why no brief had been filed. When he failed to respond,
he was ordered removed from the case and suspended from practice before the
Fifth Circuit for one year.
The disciplinary complaint filed by the Chief Judicial Administrator was
forwarded to the Respondent at his last-known address and then returned to ODC
by the postal service marked "unclaimed unable to forward."
By his acts and omissions, the Respondent has knowingly violated Rules
of Professional Conduct 3.4 (c) (knowingly disobey a lawful order of a tribunal);
8.1 (failure to cooperate with the disciplinary authorities) and 8.4 (d) (conduct
prejudicial to the administration ofjustice).
COUNT VII
Geoffrey Maynard was arrested and charged with armed robbery in Caddo
parish in April 2008. He consulted the Respondent who agreed to represent the
defendant for a fixed fee of six thousand dollars. The client's mother paid $4000
of the fee and was in the process of paying the remainder when Maynard reported
problems with the Respondent's representation to her.
In August 2008, after speaking with her son, Mrs. Maynard contacted her
bank and stopped payment on the final two checks she had written to the
Respondent. She then advised Mr. Cucci of the reasons for her actions. The
Respondent then formally withdrew from the representation before taking any
significant action in the client's matter, and counsel from the indigent defender
board was appointed to represent the defendant. The Respondent thereafter left
the state of Louisiana and relocated to New York. He has never refunded any
portion of the $4000 fee. The client then filed a disciplinary complaint against
Respondent. ODC attempted to contact the Respondent by sending certified
letters to his New York address (as well as his previous Louisiana designated
primary address) but the correspondence was returned marked "unclaimedunable to forward" by the postal service.
By his acts and omissions, the Respondent has knowingly violated Rules
1.3 (diligence); 1.4 (communication); 1.5 (f)(5) (failure to refund an unearned
fee); and 8.1 (c) (failure to cooperate with disciplinary authorities).

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 COUNT VIII
In 2003, Aaron Price retained the Respondent to defend him on felony
charges of Possession with Intent to Distribute Marijuana filed in Caddo parish.
In May 2006, on Respondent's recommendation, Price pleaded guilty to attempted
possession with intent to distribute and received a probated sentence. A little over
a year later, Price was arrested for violating his probation and again retained the
Respondent to handle the probation revocation matter. Mr. Price paid the
Respondent his agreed upon fee of $2000 to defend him on this charge, but
shortly afterwards the Respondent abandoned the client without notice, relocated
to New York and failed to complete the representation. The defendant filed a
disciplinary complaint with the Office of the Disciplinary Counsel. ODe
attempted to notify the Respondent of the filing of the complaint, but the certified
letter was returned by the postal service marked "unclaimed-unable to forward."
By his acts and omissions, the Respondent has violated Rules 1.3
(diligence); 1.4 (communication); 1.5(£)(5) (failure to refund an unearned fee);
and 8.1(c) (failure to cooperate with disciplinary authorities).
COUNT IX (as amended)
Anthony Boult was convicted of second-degree murder in Caddo parish in
1995 and his conviction thereafter became final on March 21, 1997. In April
2004, the defendant filed an application for post-conviction relief pro se with the
trial court, alleging several grounds for relief. Among his claims was an
allegation that the prosecution had failed to disclose allegedly exculpatory
evidence (Brady material) in the form of a supplemental crime lab report
containing ballistics evidence on a gun associated with the crime. A second claim
specifically alleged the "ineffective assistance" of trial counsel based on an
asserted failure to call several alleged "eyewitnesses" who defendant claimed
would have exonerated him.
Although the trial court judge summarily denied the post-conviction
application, a panel of the Second Circuit Court of Appeals reversed and
remanded the matter for an evidentiary hearing solely on the Brady issue. The
appeals court denied the defendant's "ineffective assistance" claims based on trial
counsel's asserted failure to call the certain "eyewitnesses" at the trial.
Following these events, Adrian Lee, Boult's half-brother, retained the
Respondent, John Cucci, on December 9, 2004 and paid his quoted fee of $2500
to represent Boult at the hearing. Before the Respondent could file pleadings with
the trial court and present evidence at a hearing, the Caddo district attorney filed a
written response to the remand alleging that the defendant's counsel had in fact
been provided a copy of the asserted Brady material prior to trial. The state
attached an affidavit from defendant's trial counsel, Alan Golden, to support its
allegations.

6 The defendant denominated the application as a "Motion for Evidentiary Hearing", which the trial court and the Second Circuit
treated as an application for post-conviction relief based on the defendant having previously exhausted his direct appeals in 1997.

9

 Citing Mr. Golden's affidavit as authority for its action, the trial court
summarily dismissed the remand without a hearing. The Second Circuit later
affirmed the trial court's ruling as correct and no Brady hearing was ever held.
In response to the denial of the appeal, the Respondent met with Lee and
the two agreed (apparently with the blessing of the defendant) that Respondent
would apply the $2500 (previously paid on for the hearing) on the filing of an
application for post-conviction relief, based on "newly-discovered evidence,"
utilizing the precise claims raised in the defendant's 2004 post-conviction relief
application. The Respondent also requested and was paid an "additional fee" of
$1500 to "investigate and develop newly-discovered eyewitness evidence."
Almost a year after being retained, the Respondent filed the agreed-upon postconviction application inthe First Judicial District Court on December 5,2005.
On March 31, 2006, Judge Ramona Emanuel predictably dismissed the
application as repetitive and out-of-time, observing that the "newly-discovered
evidence" claim had been raised in an earlier application and rejected. 7
Moreover, the court noted that the defendant had called other eyewitnesses at trial
who testified that the defendant was not the shooter, testimony that the jury
apparently rejected.
After the trial court rejected the application, the Respondent reached a
subsequent understanding with the client and his brother to file writs of review
with the Second Circuit Court of Appeal. The Respondent was paid $1000 on
April 28, 2006, but was discharged in June 2006, before the writ could be filed.
When the client complained that the anticipated writ· would be considered
untimely, the Respondent wrongly told him that "there was no time limit to filing
the writ" despite the fact that Judge Emanuel had fixed a return date of July 26,
2006 for the filing. 8 Apparently concerned that the Respondent's anticipated
filing would be untimely, the defendant ultimately filed a writ on his own behalf
with the Second Circuit on June 21, 2006 which was later denied. According to
the Respondent, when he learned of the client's pro se filing, he did not submit a
writ application on behalf of the client.
Prior to accepting the representation and filing the second post-conviction
application, the Respondent failed to consult with his client and brother and make
critical factual disclosures to permit them to make informed decisions whether or
not to retain the Respondent as required by the Rules of Professional Conduct.
Specifically, the Respondent failed to disclose to the client or his brother that
filing a post-conviction application on the identical grounds alleged in the 2004
application would almost certainly result in the summary dismissal of the
application as repetitive. 9 Secondly, the Respondent's inclusion of previous

7 March 31, 2006 Opinion, State ofLa. v. Anthony Boult, No. 168,573 First Judicial District Court, Caddo
Parish.
8 Order dated June 26,2006, State ofLa. v. Anthony Boult, No. 168,753, First Judicial District Court, Caddo
Parish.
9

La. C.C. Pro. Art. 930,4

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 claims of eyewitness testimony and characterizing such claims as "newly
discovered evidence" was, at a minimum, overtly disingenuous and unlikely to
succeed since both Judge Emanuel and the Second Circuit had previously rejected
this claim in the defendant's prior pro se application. The Respondent should
have disclosed these facts to the client and his brother as well.
Accordingly, by his acts and omissions, the Respondent has knowingly
violated RPC 1.4 (communication), 3.1 (meritorious claims) and 8.4(c) (conduct
involving dishonesty, fraud, deceit and misrepresentation).
Moreover, despite collecting a substantial fee totaling $5000 for filing an
arguably useless post-conviction application having little to no chance of success,
and thereafter being discharged prior to filing a writ of review with the Second
Circuit, the Respondent refused to return or refund any portion of the fee, or seek
to resolve the dispute in an appropriate forum, claiming that he had earned the fee
in its entirety.
By his acts and omissions, the Respondent has knowingly violated Rules
1.5(f) (5) (failure to refund unearned fees).
THE HEARING COMMITTEE REPORT

As noted above,'the Hearing Committee issued its report on April 21,
2011. The Committee made the following factual findings and legal conclusions:
FINDINGS OF FACT

The Office of Disciplinary Counsel received complaints over the course of
several years regarding Respondent from clients and relatives of clients regarding the
handling ofmatters for clients and the handling offees and costs. Following the filing of
formal charges, Respondent has sometimes tried to resolve the fee disputes with
mediation through the Louisiana Bar Association fee dispute mediation program, and
made token payments.
As to Counts V and IX, ODC maintains the actions of Respondent were
deceptive in that Respondent filed Applications for Post Conviction Relief for clients
which were without merit and were of no benefit to the clients of Respondent, and for
which Respondent charged substantial sums and failed to disclose to the clients the
Applications and Appeals had no chance of success. As to Count VI, (see exhibits
ODC 37-39) ODC maintains Respondent failed to file an "Anders" brief or a brief on
the merits in the matter of United States of America v. Charles Gillespie with the US
Court of Appeals for the Fifth Circuit, and for which Respondent was disciplined by
that Court. Further, ODC maintains Respondent failed to properly notify the Louisiana
Bar Association of his correct address following his relocation of his practice to the
State of New York in 2008, in accordance with Article V, Section 1 of the Articles of
Incorporation of the Louisiana State Bar Association, and failed to cooperate in the
investigation by responding to certified mail. Further, the ODC maintains Respondent
has mishandled funds entrusted to him for fees and costs of litigation; has not
appropriately placed in escrow and maintained client funds; has not correctly paid

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 experts and costs and accounted to clients and the ODC; and has not refunded
remaining funds to clients upon completion of the litigation. As to Count IV, ODC
maintains Respondent failed to visit with the client in Angola State Penitentiary
regarding a basis to proceed with Post Conviction Relief, failed to file pleadings, and
failed to address the issue of an unearned fee.

CHARGE I
(Jason Wenk)
The committee heard the testimony of Marguerite Wenk, the mother of Jason
Wenk. Ms. Wink was seeking legal assistance to help her son who was incarcerated in
Wade Correctional Center. Jason Wenk had legal representation until an incident
occurred that required his previous counsel to withdraw, due to the fact a witness was
discovered that was a relative of the former counsel. Jason Wenk asked his mother to
contact Respondent. As a result, Ms. Wenk signed an agreement prepared by
Respondent and paid Respondent over $20,075.00 (ODC #1 p. 6-9), including
$1,000.00 which she paid to Respondent when he went to her home late at
approximately 10:30 p.m. one Friday evening (accompanied by his girlfriend and her
young son) to collect cash. Ms. Wenk said Respondent told her he needed the funds for
the upcoming trial of Mr. Wenk. Ms. Wenk testified she was assured the funds would
be used to secure the testimony of a psychiatrist, Dr. Mears. [Dr. Mears testified that he
was paid a sum to visit with a number of Respondent's clients who were injail, but was
never hired to appear or testifY in court. He also testified he could not recall Mr. Wenk,
and never even prepared a report. He did say that when he went to see Mr. Wenk, Mr.
Wenk was hospitalized.] The statement of Respondent is contained in ODC #2.
Respondent takes the position he was entitled to a $2,500.00 fee for each of the cases
that were set for trial, whether the cases actually went to trial or not. Four separate cases
against the defendant were set for the same day. Apparently the funds were placed
directly in the operating account of Respondent and there was no accounting as to the
funds which were supposed to be placed in the trust account for use on medical experts
and expenses. Respondent acknowledges "poor accounting" but claims his conduct "did
not rise to the level or unethical or disciplinary conduct."

CHARGE II
(Jeffrey Winn)
Mr. Winn testified by deposition from the Louisiana State Penitentiary where
he is serving a life sentence for second degree murder. ODC #14-24 contains the
documents and testimony. Winn hired Respondent on three separate issues. The first
was a forfeiture matter in the State of Texas where Respondent recovered funds totaling
$8,041.00, and kept one third as a contingency fee, but retained the remainder and
claimed it was used to pay for fees and expenses as a result ofthe murder charge against
Winn for which Cucci was hired for a $30,000.00 fee. Respondent took those funds
from the settlement of an insurance claim he handled for Winn. Respondent claims
some funds were used to pay a (non-licensed) private investigator, LaBruce Snow.
Respondent claimed in his testimony Snow was his employee who was paid $75.00 per
hour. Mr. Snow testified he was paid $12.00 per hour. There was no accurate

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 accounting of expenditures and the funds due to Mr. Winn. Additionally, a writ was
filed at the Louisiana Supreme Court which was determined to be untimely.
CHARGE III
(Traffic Stop)
On October 10,2007, Respondent was a back seat passenger in an automobile
with three other occupants where alcohol and marijuana were in use. Prior to a stop by
Shreveport Police, an officer observed a lit cigarette being thrown from the vehicle.
After the stop the officer detected the odor of marijuana. A K-9 dog alerted on the
vehicle and after some questioning of the occupants by officers, Respondent was
charged with Possession of drug paraphernalia (LRS 40:1033) and Possession of
Schedule I (LRS 40:966E). Respondent was referred to the Caddo Parish District
Attorney diversion program, from which he was expelled when he failed a random drug
test, which indicated the presence of marijuana. (Mr. Cucci questioned the validity of
the drug test (p. 487) because it did not detect his prescribed medications ofValium and
Hydrocodine for back and leg problems (p.502)). Respondent was later readmitted to
the diversion program and was discharged after satisfactory completion. Respondent
had a previous incident at the home of a former paralegal and her son in Bossier Parish
in 2007 involving marijuana but which was not prosecuted. The committee concludes
that as to this charge there was no conviction or testimony from a police officer or any
fact witness on the alleged possession that would provide the evidence to conclude a
violation of the Rules of Professional Conduct occurred. Therefore, while the
committee does take the facts into consideration as indicated below, the committee
does find the burden of proof was not met as to this charge.
CHARGE IV
(Tony Hunter)
Patricia Hunter testified she paid Respondent $756.00 to visit with her son Tony
Hunter who was incarcerated and had been convicted of murder in a triple homicide in
Ouachita Parish. Ms. Hunter complained that after paying the funds, she repeatedly
tried to contact Respondent without success, and maintains that Respondent never
visited with her son. Respondent's response is contained in ODC 29 (Bates page
508).
CHARGE V
(John Floyd, Jr.)
John Floyd, Jr. testified that he pled guilty to Aggravated Criminal Damage to
Property in 2002 and received a five (5) year suspended sentence with three (3) years
probation. He was incarcerated in 2004 as a result of a probation revocation and served
over four years. While in jail, a fellow inmate gave him the name of Mr. Cucci as an
attorney who could be of assistance to him with an application for Post Conviction
Relief. Mr. Floyd had previously filed such a motion pro se with the assistance of a
fellow inmate (which was denied, and a denial at the Second Circuit in 2005) and stated
he was aware of the statute regarding Repetitive Applications (Code of Criminal
Procedure 930.4). Mr. Floyd contacted his parents and asked them to call Mr. Cucci for
assistance. Mr. Floyd testified he only met Mr. Cucci for a few minutes at the prison in
Grayson, Louisiana, and was told "I am going to get you out." Notwithstanding the

13

 previous denial of the pro se Application for Post Conviction Relief, (and the
provisions of Code of Criminal Procedure Article 940.4 regarding Repetitive
applications) Mr. Cucci infonned Mr. Floyd's parents that he could be of assistance.
While Respondent claimed he made no "guarantees," both Mrs. Whitty and Mr. Floyd's
step father Roosevelt Whitty testified Cucci told them at the initial consultation that for
the price of the initial consultation ($100.00) and $3,400.00, that he (Cucci) "can get
your son out", and specifically used the tenn "guarantee." Mr. Whitty testified he was
seeking to please his spouse, and is particularly "tight" with his funds. He testified he
would not have paid the price demanded by Mr. Cucci except for his "guarantee" that if
Mr. Whitty would pay $3,400.00 he (Cucci) would "get John off and that Mr. Cucci
told them nothing about the possibility oflosing." Mr. Whitty testified he never would
have paid such a sum if Cucci had infonned him that failure was possible. Following
the denial of the Application filed by Mr. Cucci on March 23,2006 (ODC #35, p. 616),
according to Mr. and Mrs. Whitty, Cucci then told them he would do an appeal for
$4,000.00. They refused. Mr. Cucci and his fonner assistant Labmce Snow, testified
they "never" gave "guarantees" and Mr. Snow testified it was not unusual for their
clients to be very irritated and to blame Mr. Cucci after the legal efforts of Mr. Cucci
were unsuccessful. (The committee notes that in the complaint filed against the
Respondent as to this count, there was nothing that indicated a "guarantee" but only that
the Respondent failed to refund the monies as ordered by the arbitrator.)
Mr. and Mrs. Whitty pursued arbitration regarding their fee dispute with
Respondent. While Respondent chose not to participate or appear, on June 4, 2007 the
arbitrator awarded Mr. and Mrs. Whitty the return of ALL of their funds, ($3,500.00)
plus the costs of appearing at the arbitration ($100.00). ODC #32 indicates Respondent
has repaid $500.00 on February 15,2008; $150.00 on August 6,2009, and $50.00 on
February 10,2011, leaving a balance of $2,900.00.

CHARGE VI
On April 2, 2008, the U.S. Court of Appeals for the Fifth Circuit issued an Order
(ODC #39) removing Mr. Cucci, for cause from the representation of Charles Gillespie
and that any funds payable to Cucci through the Criminal Just Act be forfeited. The
Court further issued an Order for Cucci to "show cause" within fifteen days why he
should not be disciplined. A subsequent Order issued on June 3, 2008 indicated Cucci
had not responded, and the Court suspended Cucci from practicing before the Court for
a period of one year. As a result of the Order, the ODC issued a letter to Cucci (ODC
#30) and discovered Cucci had failed to update his address after relocating to New
York in accordance with the requirements of the Article V, Section 1 of the Articles of
Incorporation of the Louisiana State Bar Association. Mr. Cucci testified he "never
got the notice" regarding the Anders brief and blamed it on his secretary "LaQuitta"
and her "drug problem." Respondent testified that Gillespie was "not harmed" and
that he (Cucci) was "not paid" and that he is eligible now to "reapply" to the Fifth
Circuit. He stated there was a problem with his address in New York that was not his
fault, but admitted to being a "good trial attorney but a poor business man." The
committee finds the actions of Respondent certainly are negligent, and not diligent, but
do not constitute a knowingly and intentional failure to comply with a court order.

14

 CHARGE VII AND vm
(Geoffrey Maynard and Aaron Price)
The substantive charges were dismissed by ODC based on the failure of the
complainants to participate in the disciplinary process. ODC maintains Respondent
failed to cooperate by failing to respond to complaints and to accept service by
certified mail of the complaint at his primary and secondary address. Respondent
admitted that he left Louisiana in 2008 and failed to notifY the Bar Association of his
correct address. ODC maintains such is in violation of Rule of Professional Conduct
8.1.
CHARGE IX
Mr. Adrian Lee filed a complaint against Respondent as a result of
Respondent's actions on behalf of Mr. Lee's brother Anthony Boult. Mr. Lee
contacted Mr. Cucci in December of 2004 for possible relief for his brother. $4,050.00
was paid to Mr. Cucci from December 1,2004 to April 28, 2006.
Mr. Boult was convicted of Second Degree Murder and Attempted Murder
following a jury trial in Caddo Parish in 1995, which was affirmed on appeal. In April
of 2004, Mr. Boult acting pro se filed a Uniform Application for Post Conviction
Relief, which was denied by the trial court, but in November of 2004 the Second
Circuit remanded the matter for a hearing regarding whether exculpatory evidence was
withheld by the District Attorney of a crime lab report on the testing of a .40 caliber
Beretta handgun. In December of 2004, the appointed counsel of Boult, Mr. Alan
Golden signed an Affidavit that he had been in possession of the amended report
concerning the crime lab testing. As a result, the Application for Post Conviction
Reliefwas denied by Judge Ramona Emanuel in January of2005.
Mr. Cucci filed another Application for Post Conviction Relief on December 5,
2005 (ODC #56), which was denied by the Opinion filed March 31, 2006 (ODC #57)
as repetitive. [minutes say 41712006].
Mr. Lee testified Mr. Cucci told him they had a "good chance" for a hearing.
Mr. Cucci testified his intent at the hearing was to show that witnesses who had
appeared at trial had been in fear oftheir life from the actual shooter (but who had since
been killed) and the witnesses were prepared to testifY the actual shooter (now dead)
was the murderer rather than Boult. Mr. Cucci claims that while there were no "new
witnesses," the "new evidence" was the testimony ofthe witnesses had changed.)
As a result of the denial of the hearing, Boult filed his own pro se Writ
Application to the 2nd Circuit, which was denied. He then terminated Mr. Cucci in
writing, as did Mr. Lee, on May 28,2006, June 1,2006, June 6, 2006, June 8, 2006,
and June 22, 2006 where both expressed dissatisfaction with his services.
Mr. Lee sought the return of funds from Mr. Cucci and claims he is owed
$3,500.00. Mr. Cucci claims he is entitled to the funds he received and is entitled to
additionalfees of $1,400.00 (p. 723 of ODC #48).
Mr. Cucci's testimony was that the Application for Post Conviction Relief was
not repetitive and had a factual basis, but that Judge Emanuel was not "courageous"
enough to listen to the testimony and would not have overturned the conviction.
While the facts do go a long way toward the conclusion suggested by the ODC,
in all fairness to the Respondent he was seeking to provide to his client a passionate,

15

 albeit desperate argument with very novel facts. The creativity of defense counsel is
admirable. While he did seek to gain the attention of the court, albeit with the most
difficult of facts and circumstances (some of which were caused by the client), and
although the efforts of Respondent were seemingly off handedly cast aside by the trial
judge, the committee as a whole is not ready to conclude Respondent violated a Rule of
Professional Responsibility. Had Respondent been successful in creating "a reasonable
doubt" with his argument, his actions would have been admired by the criminal bar,
and his service to his client would be valuable. As to the fee arrangement and the
accounting for the funds ofthe client, the committee does find a rule violation.

1.
A review of the exhibits, the testimony of the witnesses and Mr. Cucci shows
that Respondent was playing "fast and loose" with the funds he received and some of
which he placed in his trust account. His accounting to the ODC of expenditures for
client funds is unacceptable and his lack of cooperation with arbitrators, and the Office
of the Disciplinary Counsel, and his testimony at the hearing held in this matter,
indicates a general disregard for the intent and spirit of the guidelines imposed upon an
attorney regarding client funds. Mr. Cucci blames his "problems" upon (what he
termed) "a very public divorce," and persecution by the Shreveport police department
over a traffic stop where he was in an automobile with open alcohol, marijuana and in
the company of suspicious characters. He further blames his problems on fired
secretaries, judges who he terms "uncourageous" and "prosecution oriented" and only
admits that he personally is a New York educated attorney who is a "good trial lawyer,
but a bad businessman" and for whom "the escrow thing is a new animal."
2.
Respondent was a sole practitioner and primarily responsible for the trust
account. Respondent was the responsible attorney who either failed to deposit client
funds into the trust account and/or made improper transfers from client trust account
funds.
3.
Respondent had written agreements with clients which were not ckar,
confusing and misleading to clients, and to the committee given the circumstances of
the individual case. If the clients are to be believed, promises were made which were
far beyond reasonable for an experienced practicing attorney.
4.
While Respondent engaged in the practice of criminal law and had repeated
encounters with clients and their relatives whose consistent statements were that
Respondent claimed he could deliver positive results which were in truth beyond
reasonable expectation. These same clients and relatives paid large sums for services
which may border upon an unreasonable fee, and for which there was no proper
accounting, and have not been repaid pursuant to arbitration.
The Committee found the following violations ofthe Professional Conduct:

Count I
Rule 1.15(a)(b)(c)(f) (failure to deposit client funds in a trust account and to properly
account for those funds; failure to refund unearned fees following discharge and prior to
case completion, and failure to refund fees as found by a neutral arbitrator.)

16

 Count II
Rule 1.5 (a) (collecting an unreasonable fee for the filing of writ deemed to be untimely
and useless to the client; (f) (failure to deposit client funds in a trust account, failure to
failure to·remit funds to a client, and failure to provide an accounting of funds retained
and allegedly expended or retained.)

Count III
The committee found that the burden ofproof was not met by 0 DC as to Count III.

Count IV
Rule 1.4 (a) (b) (failure to communicate with a client about the objectives, failure to
keep the client reasonably informed, failure to promptly comply with requests for
information, and failure to provide sufficient information to participate intelligently in
decisions), and 1.5(f) 4 (failure to render an account for funds paid in advance).

Count V
Rule 1.5(a) (charging an unreasonable fee, failure to account for funds, failure to
cooperate in dispute resolution, and failure to refund fees as ordered).

Count VI
The committee found that the burden ofproof was not met by ODC as to Count VI.

Count VII and VIII
Rule 8.1(c) (failure to cooperate with the Office of Disciplinary Council in its
investigation of any matter before it).

Count IX
The committee found that Respondent violated Rule 8.4(c) (engaging in conduct
involving dishonesty, fraud, deceit and misrepresentation) as to funds of the client and
fees.
The Committee found Respondent repeatedly violated duties owed to his former clients,
the public, the legal system, and the legal profession. They found his conduct to be in some
instances intentional, other instances knowing, and found that he acted in other instances, "very
often with great negligence and disregard for the governing rules and statutes regarding the
practice of law and professional relationships with the public." Hearing Committee Report, p.
11. The Committee did not specifically cite any mitigating or aggravating factors.

17

 The Committee concluded that:
The primary factor in the misconduct of Respondent was extremely poor personal and
professional judgment, discipline and practices. As a criminal defense attorney,
Respondent is in the position to take great advantage of people in very difficult personal
straits (more often than not who are there because of their own poor judgment,
discipline and practices), and who are very susceptible for the "hope" that he offers at
a very great price. In the opinion of the Committee the primary factor in the pattern of
continuing misconduct were character flaws that were continually evidenced in the
actions of the Respondent. This finding is buttressed by repeated acts of conversion of
funds, the failure to acknowledge responsibility for past actions, and the lengthy failure
to make concerted attempts toward repayment of the losses, which caused, and
continue to cause, substantial harm to his former clients. While the committee is
tempted but not inclined to believe Respondent gave a verbal "guarantee" of success,
the committee is certainly not convinced his clients were made to understand the long
odds against the success of his services under the most difficult criminal circumstances.
The lack of clear, candid and disclosing written agreements is a primary reason.
Hearing Committee Report, p. 12.
The Committee concluded that a five year suspension, without deferral, was the
appropriate sanction. They also recommended that Respondent complete courses in trust
accounting with the Bar Association prior to being allowed to practice again as an attorney
in the State of Louisiana, and that he be placed under the guidance of a probation monitor.
The Committee also recommended that Respondent provide a full accounting to each of the
complainants and that he refund all fees, as determined by the respective arbitrator(s). The
Committee further recommended that the Respondent be charged with all costs and expenses
ofthe disciplinary proceedings.

ANALYSIS OF THE RECORD BEFORE THE BOARD

I. The Standard of Review
The powers and duties of the Disciplinary Board are defined in Section 2 of the Louisiana
Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Subsection (G)(2)(a)
states that the Board is "to perform appellate review functions, consisting of review of the

18

 findings of fact, conclusions oflaw, and recommendations of hearing committees with respect to
formal charges and prepare and forward to the court its own findings, if any, and
recommendations." Inasmuch as the Board is serving in an appellate capacity, the standard of
review applied to findings of fact is that of "manifest error." Arceneaux v. Domingue, 365 So.
2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts de novo
review of the hearing committee's application of the Rules of Professional Conduct. In re Hill,
90-DB-004 (La. Atty. Disc. Bd. 1/22/92).
Here, the Committee's findings of fact do not appear to be manifestly erroneous. After a

de novo review of the record, the Board finds the following violations of the Rules of
Professional Conduct:

COUNT I - JASON WENK
The record supports the Committee's finding that the Respondent violated Rule 1.5 (f) (5)
(failure to refund unearned fees) and Rule 1.15 (failure to deposit client funds in a trust account and to
properly account for those funds).

Marguerite Wenk, the mother of client Jason Wenk, paid

Respondent over $20,075.00. ODC Exh. 1 p. 6-9. Respondent admits that he did not earn the entire
fee of $20,075.00 paid by Mrs. Wenk. Hrg. Trans. 03/15/11, pg. 446, In. 18-20; and pg. 425, In.
18-21. Louisiana State Bar Association arbitrator Stephen H. Kupperman arbitrated the fee dispute
between the parties and determined on February 21,2010 that Respondent owed the Wenks $4,910.11,
with interest from the date ofthe award, for unperformed work or for unaccounted expenses at the time
of his discharge. ODC Exh. 3 p. 66. To date, Respondent has paid $4,000 to Mrs. Wenk. Hrg. Trans.
03/15/11, pg. 455, In. 7-9. In violation of Rule 1.15, Respondent failed to deposit the client's
$2500 expense payment into an escrow account as required. Hrg. Trans. 03/15/11, pgs. 449-452.
Respondent admits that he "was sloppy with some of my bookkeeping..." Hrg. Trans. 03/15/11, pgs.

19

 420, In. 12. He stated, " ...with Mr. Wenk I probably wasn't the best record keeper and I'm sorry for
that." Hrg. Trans. 03/15/11, pgs. 425, In. 23-24. Respondent could not explain why he was unable to
provide a written accounting for $17,500 paid to him by Mrs. Wenk. Hrg. Trans. 03/15/11, pgs. 241, In.
18-24.
The Board additionally fmds a violation of Rule 8.1 (c) (failure to cooperate with disciplinary
authorities), as charged by ODC, as Respondent failed to produce to ODC an accounting with
cancelled checks and other fmancial documents which he is required to maintain. When he did not
produce the requested documentation, ODC was forced to subpoena Respondent's trust account
records to determine how the client's funds were handled.

Accordingly, the Board finds that

Respondent violated Rule 1.5 (f) (5), Rule 1.15 and Rule 8.1(c).

COUNT II - JEFFREY WINN
The record supports the Committee's finding that the Respondent violated Rule 1.5
(collecting an unreasonable fee for the filing of a writ deemed to be untimely and useless to the client);
and Rule 1.15 (failure to account and conversion of client funds).

The record reflects that

Respondent collected excessive fees for the services provided for Mr. Winn. Respondent was paid
for filing an untimely writ to the Supreme Court which he admits was of no benefit to Mr. Winn.
Hrg. Trans. 03115/11, pgs. 259, In. 2- 20. In October 2005, the Respondent was given a $36,000 check
from the client's insurance settlement of which $30,000 was designated as an agreed upon fee. The
Respondent retained, and is unable to account for the remaining $6,000. Hrg. Trans. 03/15/11, pgs.
250-252. Accordingly, the Board finds that Respondent violated Rule 1.5 and Rule 1.15.

COUNT III - RESPONDENT'S TRAFFIC STOP
The record supports the Committee's finding that the burden of proof was not met by
ODC as to Count III, and therefore violations of Rule 8.3(a) (commission of a criminal act) and

20

 Rule 8.1(c) (failure to cooperate with disciplinary authorities) were not established.

The

Committee correctly concluded that although Respondent was charged with possession of a
Schedule I drug and drug paraphernalia, there was no conviction or testimony from a police
officer or other witness to the alleged possession that would provide the evidence needed to
conclude a violation of the Rules of Professional Conduct. Hrg. Trans. 03/15/11, ODC Exh. 2527. Accordingly, the Board finds that no rule violations proven in Count III.

COUNT IV - PATRICIA HUNTER CROW
The record supports the Committee's finding that Respondent violated Rule 1.4 (a) (b)
(failure to communicate with a client about the objectives, to keep the client reasonably informed, to
promptly comply with requests for information, and to provide sufficient information to participate
intelligently in decisions), and 1.5(£)(4) (failure to render an account for funds paid in advance.).
Respondent was hired by the client (Tony Hunter), and was paid a partial down payment
of $756.00 by his mother Patricia Ann Hunter Crow, to visit Mr. Hunter in Angola Penitentiary.
Hrg. Trans. 03/15/11, ODC Exh. 28.

Respondent did not visit Mr. Hunter in Angola

Penitentiary, nor did he communicate to Mr. Hunter his reasons for failing to visit him in
Angola. Hrg. Trans. 03/15/11, ODC Exh. 30, Bates pg. 521- 523. Ms. Hunter testified that her
repeated attempts to communicate with Respondent failed. Hrg. Trans. 03/15/11, pg 141, In 2025; pg. 142, In, 1-5. Ms. Hunter also testified that Respondent failed to provide an accounting of
the work he performed on behalf of her son, Tony Hunter. Hrg. Trans. 03/15/11, pg 145, In 1-7.
Accordingly, the record supports the Committee's conclusion that Respondent violated Rules 1.4
(a) (b) and 1.5(£)(4).

21

 COUNT V - ROOSEVELTAND DORIS WHITTY

The record supports the Committee's finding that the Respondent violated Rule 1.5(a)
(charging an unreasonable fee).

In addition, the Board recommends fmding violations of Rule

1.5(f)(5) (failing to return an unearned fee), and Rule 8.4(c) (conduct involving dishonesty,
fraud, deceit and misrepresentation), as originally charged by the ODC. After the Whittys turned
to the Bar Association to arbitrate what they believed to be an unearned fee, Louisiana State Bar
Arbitrator Claudius E. Whitmeyer ordered the Respondent to repay the full $3500 fee paid by
Mr. and Mrs. Whitty plus $100.00 in travel costs expended by the Whittys to attend the
arbitration. Hrg. Trans. 03/15/11, ODC Exh. 32, pg. 543. Mr. Whitmeyer noted, "Nothing in the
work done by Mr. Cucci appeared to be more than the re-filing of the original objection to the
trial judge's first ruling." Id. To date, the Respondent has repaid the Whittys only $700. Hrg.
Trans. 03/15/11, Pg. 344, In. 2-5. Accordingly, the Board finds violations of Rule 1.5(a), Rule
1.5(f)(5) and Rule 8.4(c).
COUNT VI - ODe

Rule 8.1 (c) appears to have been violated in that Respondent is in violation of Louisiana
Supreme Court Rule XIX, Sections 8(c} and 9(a) as he failed to keep his registration statement
addresses current with the Louisiana State Bar Association. The Committee correctly found that
the burden of proof was not met by ODC as to alleged violations of Rule 3.4(c) (knowingly
disobey a lawful order of a tribunal); and Rule 8.4(d) (engaging in conduct that is prejudicial to
the administration ofjustice), and that these rule violations were not established. Thus the Board
finds a violation of Rule 8.1(c).

22

 COUNT VII and VIII - GEOFFREYMAYNARD an d AARON PRICE
The Committee correctly found that the Respondent violated Rule 8.1(c) (failure to cooperate
with the disciplinary authorities). The substantive charges of Counts VII and VIII were dismissed by
ODC based on the failure of the complainants to participate in the disciplinary process. ODC's PostHearing memorandum, pg. 6. However, Respondent failed to provide updated contact information
with the Louisiana State Bar Association, and in turn failed to respond to complaints and to accept
service by certified mail of the complaint at his primary and secondary address. Accordingly, the
Board fmds that Respondent violated Rule 8.1 (c).
COUNT IX-ADRLilVLEE

The Committee correctly found no violation of Rule 3.1 (asserting non-meritorious
claims and contentions).

ODC failed to prove by clear and convmcmg evidence that the

Respondent was not in good faith when he filed an application for post-conviction relief for his
client based on eyewitness testimony that he believed was new. Exhibit "A" to the application
filed by Respondent contains interviews with eyewitnesses, one of whom was a newly identified
witness to the underlying crime. ODC Exh. 56, p. 853 (statement of witness Brad Gaston).l0 The
Committee also correctly found a violation of Rule 8A( c) in that Respondent engaged in conduct
that was dishonest regarding the fee arraignment and the accounting for the funds of the client.
Accordingly, the record supports the Committee's conclusion that Respondent violated
Rule 8.4(c).

10 In support of its decision to decline to find a violation of Rule 3.1, the Committee stated, "While the facts do go a
long way toward the conclusion suggested by the ODC, in all fairness to the Respondent he was seeking to provide to his
client a passionate, albeit desperate argument with very novel facts. The creativity of defense counsel is admirable. While he
did seek to gain the attention of the court, albeit with the most difficult of facts and circumstances (some of which were
caused by the client), and although the efforts of Respondent were seemingly off handedly cast aside by the trial judge, the
committee as a whole is not ready to conclude Respondent violated a Rule of Professional Responsibility. Had Respondent
been successful in creating 'a reasonable doubt' with his argument, his actions would have been admired by the criminal bar,
and his service to his client would be valuable." The Board adopts the Committee's reasoning and also declines to find a
violation of Rule 3.1.

23

 II.

THE APPROPRIATE SANCTION

A. Applicatio,n of Rule XIX, §10(C) Factors

Louisiana Supreme Court Rule XIX, § 10(C) states that in imposing a sanction after a
finding of lawyer misconduct, the Court or Board shall consider the following factors:
1. whether the lawyer has violated a duty owed to a client, to the public, to
the legal system, or to the profession;
2. whether the lawyer acted intentionally, knowingly, or negligently;
3. the amount of actual or potential injury caused by the lawyer's
misconduct; and
4. the existence of any aggravating or mitigating factors.
Respondent appears to have violated duties owed to his clients and the legal profession.
Respondent's conduct is at a minimum knowing. Respondent harmed multiple clients by failing
to account for their funds, failing to properly manage and maintain his clients' trust accounts and
failing to return unearned fees to several clients. His failure to update his registration address
with the Bar Association caused him to appear umesponsive to ODe during the disciplinary
proceedings.
Aggravating and mitigating factors must next be considered under the § IO(C) analysis.
The Committee concluded that the aggravating factors far outweighed any mitigating factors, but
they did not detail which mitigating or aggravating factors may apply. The Board recommends
the following aggravating factors: multiple offenses, bad faith obstruction of the disciplinary
process by intentionally failing to comply with rules or orders of the disciplinary agency,
vulnerability of victims, and, substantial experience in the practice of law. 11

The Board

recommends the following mitigating factors: absence of a prior disciplinary record, personal or
emotional problems, and remorse.

11

Respondent has practiced law since 1993.

24

 B.

The ABA Standards and the Case Law
The ABA Standards for Imposing Lawyer Sanctions suggests that suspension is the

baseline sanction in this matter.

Standard 4.12 indicates that suspension is "generally

appropriate when a lawyer knows or should know that he is dealing improperly with client
property and causes injury or potential injury to a client." The unearned fee disputes within
Count I (Wenk) and Count V (Whitty) were both arbitrated, and Respondent was ordered to pay
both of those clients' specific sums of money. To date, he has not completed either payment to
either party. As to Mr. Winn (Count II), Respondent has not accounted for all of the funds paid
to him by Mr. Winn. Clearly, the Respondent therefore knows, as he was told by a neutral
arbitrator, that he has dealt improperly with client funds, causing injury to clients.
Further, Standard 7.2 indicates that suspension is "generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed as a professional, and causes
injury or potential injury to a client, the public, or the legal system." By failing to update his
contact information with the Bar, and in failing to properly handle the two fee disputes noted
above, the Respondent violated his professional obligations owed to ODC and to his clients.
Actual harm was caused to ODC and potential harm was caused to Mrs. Wenk and Mrs. Whitty.
The Court has applied a range of sanctions for misconduct which involved multiple
counts of failure to return unearned fees, poor accounting, and failure to cooperate with the
disciplinary proceedings. The Board finds Respondent's behavior most analogous to several
cases, described herein, in which three year suspensions were imposed.

In In re Barry E.

Edwards, 03-2190, (La. 1/21/04), 864 So.2d 166, the respondent was suspended for three years
for misconduct involving five clients for multiple violations including failure to return unearned
fees, failure to cooperate with ODC, failure to communicate with clients, lack of diligence on

25

 client matters, and dishonest and deceitful conduct. In In re Sheila Ann Wharton, 03-1816 (La.
10/17/03), 872 So.2d 459, the respondent was suspended for three years for misconduct
involving seven clients and multiple violations including respondent's failure to communicate
with clients, neglect of legal matters, refusal to refund unearned fees, and failure to cooperate
with ODC in its investigation. In In re Anne. T Turissini, 03-0549 (La. 6/6103), 849 So.2d 491,
the Court suspended the respondent for three years for misconduct involving six clients and
multiple violations including respondent's failure to return unearned fees, failure to cooperate
with ODC, lack of diligence, failure to communicate with clients.
Respondent has thus far paid the Wenks (Count I) $4,000 of the $4,910.11 which he was
ordered to pay by the Bar arbitrator. To date he has paid the Whittys (Count V) $700 of the
$3600 which he was ordered to pay by the Bar arbitrator. Respondent has no prior disciplinary
history, and the record supports the fact that he is a zealous criminal defense attorney, who
struggled through a difficult divorce during the period of misconduct. Considering the record as
a whole, the ABA Standards and the case law, the Board recommends that Respondent be
suspended from the practice of law for a period of three years, with six months deferred.
Respondent is now practicing law in N ew York, and has not indicated that he intends to
return to Louisiana to practice law. As mentioned above, he is currently ineligible to practice
law in Louisiana as he has not completed his annual MCLE requirements for 2010.
CONCLUSION

The Disciplinary Board adopts the findings of fact and conclusions of law as determined
by the Committee.

The Board finds the Committee's findings of fact are not manifestly

erroneous and the Respondent has violated Rule 1.4(a)(b), Rule 1.5(a), Rule 1.5(t)(4)(5), Rule
1.15, Rule 8.1(c), and Rule 8.4(c). The Board recommends that Respondent be suspended from

26

 the practice of law for three years, with six months deferred. The Board recommends that he
provide a full accounting to each of the complainants and that he refund all unearned fees, as
determined by an arbitrator. The Board also recommends that Respondent be assessed with the
costs and expenses of this proceeding in accordance with Rule XIX, Section IO.l(A).
RECOMMENDATION

The Board recommends that Respondent, John Cucci, Jr. be suspended from the practice
of law for three years, with six months deferred. The Board recommends that he provide a full
accounting to each of the complainants and that he refund all unearned fees, as determined by an
arbitrator. The Board also recommends that Respondent be assessed with the costs and expenses
of this proceeding in accordance with Rule XIX, Section 1O.1(A).

LOUISIANA ATTORNEY DISCIPLINARY BOARD
Carl A. Butler
Stephen F. Chiccarelli
George L. Crain, Jr.
Dow M. Edwards
Jamie E. Fontenot
R. Lewis Smith, Jr.
Linda P. Spain
R. Steven Tew

BY:

-=
------:__--+--11--------EDWIN G. PREIS, JR.
FOR THE ADJUDICATIVE COMMITTEE

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 APPENDIX
RULE 1.3. DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.

RULE 1.4. COMMUNICATION
(amended 3/1/2004)
(a) A lawyer shall:
(l) promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in Rule I.O(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer
knows that the client expects assistance not permitted by the Rules of Professional Conduct or
other law.
(b) The lawyer shall give the client sufficient information to participate intelligently in decisions
concerning the objectives of the representation and the means by which they are to be pursued.
(c) A lawyer who provides any form of financial assistance to a client during the course of a
representation shall, prior to providing such financial assistance, inform the client in writing of
the terms and conditions under which such financial assistance is made, including but not limited
to, repayment obligations, the imposition and rate of interest or other charges, and the scope and
limitations imposed upon lawyers providing financial assistance as set forth in Rule 1.8(e).
RULE 1.5. FEES
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
umeasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in writing, before or
within a reasonable time after commencing the representation, except when the lawyer will

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 charge a regularly represented client on the same basis or rate. Any changes in the basis or rate
of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A
contingent fee agreement shall be in a writing signed by the client. A copy or duplicate original
of the executed agreement shall be given to the client at the time of execution of the agreement.
The contingency fee agreement shall state the method by which the fee is to be determined,
including the percentage or percentages that shall accrue to the lawyer in the event of settlement,
trial or appeal; the litigation and other expenses that are to be deducted from the recovery; and
whether such expenses are to be deducted before or after the contingent fee is calculated. The
agreement must clearly notify the client of any expenses for which the client will be liable
whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the
lawyer shall provide the client with a written statement stating the outcome of the matter and, if
there is a recovery, showing the remittance to the client and the method of its determination.
(d)A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon
the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu
thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e)A division of fee between lawyers who are not in the same firm may be made only if:
(1) the client agrees in writing to the representation by all of the lawyers involved, and is advised
in writing as to the share of the fee that each lawyer will receive;
(2) the total fee is reasonable; and
(3) each lawyer renders meaningful legal services for the client in the matter.
(f) Payment of fees in advance of services shall be subject to the following rules:
(1) When the client pays the lawyer a fee to retain the lawyer's general availability to the client
and the fee is not related to a particular representation, the funds become the property of the
lawyer when paid and may be placed in the lawyer's operating account..
(2) When the client pays the lawyer all or part of a fixed fee or of a minimum fee for particular
representation with services to be rendered in the future, the funds become the property of the
lawyer when paid, subject to the provisions of Rule 1.5(f)(5). Such funds need not be placed in
the lawyer's trust account, but may be placed in the lawyer's operating account.
(3) When the client pays the lawyer an advance deposit against fees which are to accrue in the
future on an hourly or other agreed basis, the funds remain the property of the client and must be
placed in the lawyer's trust account. The lawyer may transfer these funds as fees are earned from
the trust account to the operating account, without further authorization from the client for each
transfer, but must render a periodic accounting for these funds as is reasonable under the
circumstances.
(4)When the client pays the lawyer an advance deposit to be used for costs and expenses, the
funds remain the property of the client and must be placed in the lawyer's trust account. The
lawyer may expend these funds as costs and expenses accrue, without further authorization from

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 the client for each expenditure, but must render a periodic accounting for these funds as is
reasonable under the circumstances.
(S) When the client pays the lawyer a fixed fee, a minimum fee or a fee drawn from an advanced
deposit, and a fee dispute arises between the lawyer and the client, either during the course of the
representation or at the termination of the representation, the lawyer shall immediately refund to
the client the unearned portion of such fee, if any. lfthe lawyer and the client disagree on the
unearned portion of such fee, the lawyer shall immediately refund to the client the amount, if
any, that they agree has not been earned, and the lawyer shall deposit into a trust account an
amount representing the portion reasonably in dispute. The lawyer shall hold such disputed funds
in trust until the dispute is resolved, but the lawyer shall not do so to coerce the client into
accepting the lawyer's contentions. As to any fee dispute, the lawyer should suggest a means for
prompt resolution such as mediation or arbitration, including arbitration with the Louisiana State
Bar Association Fee Dispute Program.

RULE 1.15. SAFEKEEPING OF PROPERTY
(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. Funds shall be kept in
a separate account maintained in a bank or similar institution in the state where the lawyer's
office is situated, or elsewhere with the consent of the client or third person. Other property shall
be identified as such and appropriately safeguarded. Complete records of such account funds and
other property shall be kept by the lawyer and shall be preserved for a period of five years after
termination of the representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of
paying bank service charges on that account or obtaining a waiver of those charges, but only in
an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid
in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. The
lawyer shall deposit legal fees and expenses into the client trust account consistent with Rule
I.S(t).
(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. . .. Except as stated in this rule or
otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to
the client 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.

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RULE 3.1. MERITORIOUS CLAIMS AND CONTENTIONS
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of existing law. A lawyer for the defendant
in a criminal proceeding, or the respondent in a proceeding that could result in incarceration,
may nevertheless so defend the proceeding as to require that every element of the case be
established.

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 RULE 3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:

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(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal
based on an assertion that no valid obligation exists.

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RULE 8.1. BAR ADMISSION AND DISCIPLINARY MATTERS

An applicant for admission to the bar, or a lawyer in connection with a bar admission application
or in connection with a disciplinary matter, shall not:

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(c)Fail to cooperate with the Office of Disciplinary Counsel in its investigation of any matter
before it except for an openly expressed claim of a constitutional privilege.
RULE 8.4. MISCONDUCT
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of another;
(b) Commit a criminal act especially one that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration ofjustice.

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