A SAMPLING OF LOUISIANA SUPREME COURT
2017 ETHIC RULINGS, ORDERS & OPINIONS
LAFAYETTE BAR ASSOCIATION
CLE BY THE HOUR
DECEMBER 30, 2017
Presenter:
Lamont P. Domingue
SUPREME COURT OF LOUISIANA
NO. 2016-B-1116
IN RE: JAMES D. MECCA
ATTORNEY DISCIPLINARY PROCEEDING
1/20/17
In December 2013, Mr. Mecca was caught in a sting operation exchanging legal services for marijuana. Following his arrest, he self-reported his arrest to the ODC and his intent to cooperate with Judges and Lawyers Assistance Program (JLAP). Following an evaluation, Mr. Mecca was diagnosed with alcohol and cannabis dependence and unresolved grief and depression stemming from the death of his father in 2011. Mr. Mecca’s cooperation with the ODC and his participation in JLAP were exemplary. By all accounts, there was really nothing more Mr. Mecca could have done to atone for his professional violations. Additionally, there was no evidence of any harm to any client.
The Hearing Committee recommended a suspension of 1 year and 1 day, fully deferred, with probation to run concurrently with his JLAP recovery agreement, which ends in 2019. The Disciplinary Board recommended a 2 year suspension, fully deferred with the same condition. The Supreme Court, however, imposed a sanction of 1-year suspension from the practice of law, stating, “Considering that respondent bartered his legal services for illegal drugs, directly implicating the practice of law and causing harm to the legal profession, we will not defer any portion of the suspension.”
SUPREME COURT OF LOUISIANA
NO. 2016-B-2278
IN RE: EDWARD HEBERT, II
ATTORNEY DISCIPLINARY PROCEEDING
3/31/17
Prior to his most recent transgressions, Mr. Hebert had been ineligible to practice law since 2006 based on his failure to comply with his CLE requirements. He was also ineligible for failure to pay bar dues and the disciplinary assessment. In 2009, he was suspended for one year and one day for neglecting a legal matter, failing to communicate with his client, making false statements of material fact to his client and the ODC, and failing to cooperate with the ODC’s investigation. In re: Hebert, 08-2785 (La. 5/29/09), 9 So. 3d 846 (“Hebert I”). In 2012, he was suspended for eighteen months for, among other misconduct, failing to communicate with clients, failing to return unearned fees, and failing to cooperate with the ODC. In re: Hebert, 12-2102 (La. 11/16/12), 125 So. 3d 1074 (“Hebert II”). He never applied for reinstatement and, thus, remained suspended from the practice of law.
On May 11, 2015, Mr. Hebert appeared as counsel for Ivan Prevost in the courtroom of Judge Monique Barial of the Orleans Parish Civil District Court. The court rendered a judgment, which Mr. Hebert was to prepare. Unable to reach him to obtain a copy of the judgment, Mr. Prevost went to the court’s chambers to get a copy. The office staff told Mr. Prevost that they had not yet received the judgment. Two days later, Mr. Prevost returned to the court’s chambers to get a copy of the judgment. Mr. Prevost told the staff that he still had not heard from Mr. Hebert, and had in fact learned that Mr. Hebert had been disbarred.
Judge Barial then conducted an investigation that revealed Mr. Edward W. Hebert, bar roll number 25086, was ineligible to practice law. However, on the judgment that Mr. Hebert submitted to the court, he had listed his name as “E. Hebert” and his bar roll number as 25412. According to the court’s database, that bar roll number belonged to an attorney by the name of Eric T. Hebert. Judge Barial called Eric Hebert, who confirmed that the bar roll number listed on the pleading was his, but that he was not Edward Hebert, and that there was no Edward Hebert at his firm.
Mr. Hebert never told Mr. Prevost that he was suspended from the practice of law, and accepted $500 in cash to represent Mr. Prevost, which was never refunded. Judge Barial filed an ODC complaint against Mr. Hebert in July 2015, but Mr. Hebert never responded. In February 2016, the ODC filed formal charges against Mr. Hebert alleging that his conduct as set forth above violated Rules 5.5(a) (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.
The Supreme Court permanently disbarred Mr. Hebert, stating:
Turning to the issue of an appropriate sanction, respondent’s conduct falls squarely within Guidelines 8 and 9 of the permanent disbarment guidelines. These guidelines provide as follows:
GUIDELINE 8.Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9.Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.
Respondent practiced law and held himself out as an attorney in 2015 although he never sought reinstatement from his 2009 suspension in Hebert I. Thus, Guideline 8 is applicable. Guideline 9 also applies, as respondent’s current misconduct, taken as a whole, is serious attorney misconduct and was preceded by his one year and one day suspension in Hebert I and his eighteen-month suspension in Hebert II. Respondent’s misconduct during his suspension clearly demonstrates he lacks the fitness to engage in the practice of law in this state and, therefore, we find he should not be given an opportunity to seek readmission.
SUPREME COURT OF LOUISIANA
NO. 2017-B-0261
IN RE: JAMES LOUIS FAHRENHOLTZ
ATTORNEY DISCIPLINARY PROCEEDING
4/7/17
A former Orleans Parish School Board member and lobbyist, Mr. Fahrenholtz was previously suspended from the practice of law for one year and one day for particularly egregious failure to cooperate, which necessitated a formal application for reinstatement. In re: Fahrenholtz, 09-0748 (La. 10/2/09), 18 So. 3d 751.He did not seek reinstatement and remained suspended from the practice of law when his more recent violations occurred, which were described as:
In April 2015, a lobbyist working at the Louisiana State Capitol in Baton Rouge reported that his briefcase and Apple iPad, keyboard, and case were stolen from the Capitol building. The Louisiana State Police initiated an investigation into the matter and traced an electronic signal from the iPad to respondent’s home in New Orleans. Upon being questioned by law enforcement officers, respondent initially denied any knowledge of the theft; however, officers saw the stolen briefcase in plain view in respondent’s kitchen. Officers then obtained a search warrant and discovered the iPad, keyboard, and case in a pond at the rear of respondent’s property, where he had thrown them in an effort to hide and destroy evidence. Respondent was arrested and charged in Orleans Parish with illegal possession of stolen things and obstruction of justice. He was also charged in East Baton Rouge Parish with felony theft. In July 2015, respondent resolved the criminal charges by entering into a pretrial diversion program which permitted him to plead guilty to a misdemeanor charge of illegal possession of stolen things. He was also required to pay restitution in the amount of $800 to the victim.
For this conduct Mr. Fahrenholtz was charged with violating the following provisions of the Rules of Professional Conduct: Rules 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The Supreme Court imposed the sanction of disbarment, stating:
The record supports the following aggravating factors: a prior disciplinary record, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. The only mitigating factor present is the imposition of other penalties or sanctions in connection with the criminal proceeding.
Turning to the issue of an appropriate sanction, one member of the disciplinary board has recommended that respondent be permanently disbarred. Both the hearing committee and a majority of the disciplinary board have recommended that respondent be disbarred. The ODC does not object to this recommendation, and in fact, suggested in its deemed admitted submission that disbarment is the appropriate sanction in this matter.
We agree. We have not hesitated to disbar lawyers who have engaged in serious crimes, including theft. In the instant case, respondent was convicted of illegal possession of stolen things, a misdemeanor offense which contains elements of willing and knowing deceit. This conduct warrants disbarment. Accordingly, we will accept the disciplinary board’s recommendation and disbar respondent.
SUPREME COURT OF LOUISIANA
NO. 2017-B-0519
IN RE: HUGH B. EXNICIOS, JR.
ATTORNEY DISCIPLINARY PROCEEDING
5/1/17
The ODC commenced an investigation into allegations that Mr. Exnicios mishandled his client trust account and threatened to bring a disciplinary complaint against an attorney in an effort to gain an advantage in a civil case. Following the filing of formal charges, Mr. Exnicios and the ODC submitted a joint petition for consent discipline in which he admitted that his conduct violated Rules 1.15(a)(b)(f) and 8.4(g) of the Rules of Professional Conduct. He was suspended from the practice of law for a period of six months, deferred in its entirety, subject to his successful completion of a one-year period of probation governed by certain unspecified conditions set forth in the petition for consent discipline.
SUPREME COURT OF LOUISIANA
NO. 2017-B-0387
IN RE: JOHNNY S. ANZALONE
ATTORNEY DISCIPLINARY PROCEEDING
5/12/17
Mr. Anzalone was convicted of DWI following a bench trial on March 17, 2014 and in the course of the criminal proceeding, his drug screening was positive for cocaine and methadone. Three days before the bench trial, Mr. Anzalone was arrested for a second DWI and admitted to the arresting officer he was under the influence of “meth.” He plead no contest to a first offense OWI. In response to formal charges by the ODC, he admitted he was found guilty of first offense DWI, admitted the use of methadone pursuant to a valid prescription and denied that he use or voluntarily ingested cocaine. At the disciplinary hearing, Mr. Anzalone testified that he was under the care of doctors for pain management, totally disabled, covered by Medicaid and had a recent 5-level laminectomy. His health problems dated back to a 1986 auto accident that caused permanent back and neck pain. He was subject to drug abuse counseling related to his no contest plea for the second DWI, but claimed that his drug abuse counselor found that he did not need drug abuse treatment.
The board declined to adopt the mitigating factor of physical or mental disability or dependency, noting that the record does not contain the necessary evidence to support such a finding.2 Indeed, respondent failed to offer any admissible evidence or testimony to support a claim of chemical dependency. Rather, he has argued that he is not in need of treatment.
Footnote 2: In order to prove the mitigating factor of chemical dependency, ABA Standard 9.32(i) provides the lawyer must prove the following four factors by clear and convincing evidence: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. See In re: Stoller, 04-2578 (La. 5/24/05), 902 So. 2d 981.
Mr. Anzalone was suspended for 1 year and 1 day, with no time deferred.
SUPREME COURT OF LOUISIANA
NO. 2017-B-0526
IN RE: STACY LYNN MORRIS
ATTORNEY DISCIPLINARY PROCEEDING
5/19/17
Ms. Morris was originally admitted to practice law in Louisiana in 2000. In 2014, she was suspended for three years for conduct occurring from 2004 through 2008. Her misconduct included neglect of a legal matter, failure to communicate with a client, commingling and conversion of client funds, sharing fees with a nonlawyer, and failure to cooperate with the ODC in its investigation. In re: Morris, 14-1067 (La. 10/15/14), 149 So. 3d 229 (“Morris I”).
In November 2013 Ms. Morris settled a PI case, withheld $2,161 for medical expenses, but failed to pay the provider, who filed an ODC complaint against her, but she failed to respond to the complaint. She denied the formal charges, claimed the failure to pay the provider was an oversight and that she had not received notices that the funds were due from the provider, but the evidence concerning the provider’s notice to her proved other. She admitted that she did not reconcile her trust account because she did not know how to reconcile the account. In mitigation, Ms. Morris introduced medical documents and testified that she suffered from numerous medical conditions, and that she had to cope with the incarceration of her son and the death of her “God sister.” However, the medical conditions appeared to be controlled by medications and the health issues and losing her “God sister” did not excuse her actions.
By admitting that she failed to remit settlement funds to a third-party medical provider, the court held that she violated the Rules of Professional Conduct, Rules 1.15 (safekeeping property of clients or third persons) and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.
In determining the appropriate sanction in conversion cases, the Louisiana Supreme Court routinely cites Louisiana State Bar Ass’n v. Hinrichs, 486 So. 2d 116, 122-123 (La. 1986) (citations omitted), which sets forth guidelines for imposing discipline in a conversion case as follows:
In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client's interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client's funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made.
Ms. Morris was suspended for three years to run consecutively with her suspension in Morris 1, and she was order to pay restitution of $2,161 plus legal interest.
SUPREME COURT OF LOUISIANA
NO. 2017-B-0262
IN RE: MARK ANTHONY JOHNSON
ATTORNEY DISCIPLINARY PROCEEDING
4/24/17
Mr. Anthony continued to practice law as a staff attorney with the Louisiana DOTD after being declared ineligible for failing to comply with his MCLE requirements. During the ODC’s investigation, it discovered that had been arrested for DWI upon a Breathalyzer BAC result of .08g%.
The Supreme Court suspended Mr. Johnson for 1 year and 1 day, with no time deferred, stating:
In In re: Baer, 09-1795 (La. 11/20/09), 21 So. 2d 941, the court stated the following with respect to appropriate sanctions for DWI offenses:
We have imposed sanctions ranging from actual periods of suspension to fully deferred suspensions in prior cases involving attorneys who drive while under the influence of alcohol. However, as a general rule, we tend to impose an actual suspension in those instances in which multiple DWI offenses are at issue, as well as in cases in which the DWI stems from a substance abuse problem that appears to remain unresolved.
Baer suggests that if respondent’s DWI offense had occurred in isolation, a fully deferred suspension would be an appropriate sanction. However, in addition to this misconduct, respondent continued to practice law at the DOTD after becoming ineligible to do so, creating a risk of significant harm to both his employer and to the legal matters on which he worked. In prior cases involving similar misconduct, we have imposed sanctions ranging from suspension to disbarment, with the baseline sanction generally being a suspension of one year and one day. See In re: Hardy, 03-0443 (La. 5/2/03), 848 So. 2d 511. Given that respondent also failed to cooperate with the ODC’s investigation, we find that a downward deviation from the baseline sanction is not warranted.
Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day.
SUPREME COURT OF LOUISIANA
NO. 2017-B-0782
IN RE: PRESTON G. SUTHERLAND
ATTORNEY DISCIPLINARY PROCEEDING
6/16/17
The Supreme Court suspended Mr. Sutherland for 1 year and 1 day, fully deferred, with a condition of probation for a period to coincide with the term of his recovery agreement with the Judges and Lawyers Assistance Program (JLAP).