LOUISIANA JUDICIAL COLLEGE

2016 North Louisiana Seminar Thursday, May 5

Squire Creek, Choudrant

Louisiana Supreme Court Ethics Updates

Justice Marcus R. Clark Outline prepared by Justice Marcus R. Clark Justice Scott J. Crichton

ETHICS

A LOOK AT RECENT CASE LAW AND OBSERVATIONS FROM THE SUPREME

COURT

LOUISIANA JUDICIAL COLLEGE

NORTH LOUISIANA SEMINAR MAY 5, 2016

Justice Marcus R. Clark Louisiana Supreme Court OUTLINE PREPARED BY JUSTICES MARCUS R. CLARK AND SCOTT J. CRICHTON

WITH ASSISTANCE FROM THEIR LAW CLERKS,

JULIE ELDRIDGE, SUSANNE INMAN, SARAH RUBIN COHEN, & HARRY JOHNSON CONTENT CONTRIBUTION FROM JUSTICE JEANNETTE KNOLL AND JUSTICE SCOTT CRICHTON

SPECIAL THANKS TO THE LOUISIANA LAW LIBRARY FOR ITS CONTRIBUTIONS

2

ETHICS: In a Broad Sense

Ethics is defined by Websters as “the discipline dealing with what is good and bad and with moral duty and obligation.”

This definition is in line with the concept of a moral compass.

ETHICS: In a Legal Sense

The Louisiana Rules of Professional Conduct include a common sense, but important, instruction related to competence. Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 3.3 Candor: (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

3

ETHICS: In Writings and Filings

Rule VII, Section 7 of the Rules of the Louisiana Supreme Court: The language used in any brief or document filed in this court must be courteous, and free from insulting criticism of any person, individually or officially, or of any class or association of persons, or of any court of justice, or other institution. Any violation of this rule shall subject the author or authors of the brief or document to the humiliation of having the brief or document returned, and to punishment for contempt of the authority of the court.

ATTORNEY DISCLIPINARY MATTERS

Prosecutorial Structure:

-Louisiana Supreme Court has exclusive jurisdiction of attorney disciplinary proceedings and disciplinary proceedings regarding judges.

-The Attorney Disciplinary Board performs prosecutorial and adjudicative functions. Complaints are screened by the Office of Disciplinary Counsel, an appointed agency of the Attorney Disciplinary Board. ODC decides whether to institute formal charges.

-If formal charges are filed, a hearing committee hears the case and makes a recommendation.

-The Attorney Disciplinary Board reviews the record and the recommendation and makes its own recommendation.

-The Attorney can object and the matter is set for oral argument. Alternatively, the matter is submitted without oral argument.

-ODC Can enter into consent discipline with the attorney if the Supreme court accepts.

-Louisiana Supreme Court is the ultimate decider of these cases and can accept or reject the recommendations made by the ODC and Attorney Disciplinary Board.

4

Sanctions:

*Disbarment *Reprimand

*Suspension *Admonition

*Probation * Restitution

Recent Attorney Disciplinary Matters

NOTE: All opinions are available on the day they are released on the Louisiana Supreme Court website. Opinions of the Disciplinary Board and

Hearing Committee are available at http://www.ladb.org.

1. ABUSE OF SOCIAL MEDIA In re McCool, 15-0284, 2015 WL 3972684 (La. June 30, 2015) Via an online petition and Twitter, respondent invited public criticism of judicial decisions and judges themselves and encouraged the public to individually contact the judges and the Supreme Court to overturn judicial decisions. In so doing, she made false and inflammatory statements about pending cases, attempted to influence the outcome of cases, and made incendiary comments intended to incite the public. Respondent claimed her actions were shielded by the First Amendment. She expressed no remorse and even stated she would continue to use social media in this manner.

• The Court voted 6-1 against Respondent on all violations as charged by the Office of Disciplinary Counsel (“ODC”). However, in a close decision, the Court voted 4-3 on the measure of discipline. Majority found her actions violated rules prohibiting an attorney from seeking to influence a judge by means prohibited by law, prohibiting an attorney from communicating ex parte with a judge during a proceeding, prohibiting an attorney from violating professional conduct rules, prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation, and prohibiting conduct prejudicial to the administration of justice. (Rules 3.5(a), 3.5(b), 8.4(a), 8.4(c), 8.4(d) LSA R.S. foll. 37:222.)

5

• Weimer, J. concurred in part and dissented in part. He found her conduct to be sanctionable with respect to the misrepresentations she made, but, had she made truthful statements, her statements would have been protected by the First Amendment. He would have imposed suspension of one year and one day with all but 6 months deferred.

• Guidry J. and an appointed ad hoc judge also found the sanction too harsh

and would have imposed a lighter sanction of suspension of three years.

• Crichton, J. additionally concurred. Characterizing the attorney’s actions as “astounding” and “egregious,” and noting her “utter lack of remorse,” Justice Crichton cited U.S. Supreme Court Justice Benjamin Cardozo’s remark from a 1918 opinion: “Membership in the bar is a privilege burdened with conditions.” He explained, “Those conditions are numerous, and do not come without great sacrifice.” He also condemned respondent’s statement at oral argument that she did “not have any remorse for [her] conduct” and that she would “continue to speak out and advocate for change.”

• The Court denied rehearing in this matter on August 28, 2015, by a 6-1 vote (interesting comparison between this vote and earlier 4-3 vote on measure of discipline) with the following order: “Rehearing denied. Respondent provides no meritorious basis for rehearing in her application. She also has failed to timely remit payment for her rehearing application, as required by Louisiana Supreme Court Rule IV, by submitting a Non-Sufficient Fund Check, drawn from her IOLTA account.”

2. CONFLICTS OF INTEREST: CURRENT CLIENTS In re Fuerst, 14-0647 (La. 12/9/14), 157 So. 3d 569: For nearly 12 years, attorney was involved in consensual sexual relationships with six women who had at one time either retained his services or consulted with him regarding divorce cases. With one exception, the sexual relationships did not occur while the attorney-client relationship was ongoing. Respondent acknowledged that the relationship that occurred while he was representing the client was a conflict of interest in violation of the Rules of Professional Conduct.

6

• The Court imposed a six-month suspension from the practice of law, with three months deferred. The Court acknowledged that Respondent had a sexual relationship with one current client, a violation of the Rules. (Rules 1.7(a)(2), 8.4.). However, the Court found no support in the Rules for ODC’s argument that the ethical prohibitions against attorney-client sexual relationships should be extended to former clients, and therefore did not find misconduct in Respondent’s relationships the other five women.

• Knoll, J., concurred, finding respondent had a duty to refrain from entering into a sexual relationship with his former clients until their underlying domestic proceedings were concluded. By failing to do so, respondent placed his personal interests ahead of his professional obligations and potentially jeopardized his clients’ legal matters.

• Weimer, J., concurred, agreeing with Justice Knoll’s concurrence and adding that an attorney’s duty to refrain from entering into a sexual relationship with a former client stemmed from the prohibition against conduct prejudicial to the administration of justice.

3. MISAPPROPRIATION OF CLIENT FUNDS:

COMMINGLING AND CONVERSION1 In Re Brown-Mitchell, 14-2544 (La. 5/5/15), 167 So. 3d 545: Respondent converted $7,000 in client funds for personal use, persuaded a client to sign a quitclaim deed under false pretenses, and failed to return an unearned fee and a client file.

• The Court ordered disbarment. The Court found that there were numerous aggravating factors and noted that respondent’s misconduct was “egregious.” The Court found she knowingly and intentionally violated duties owed to her clients, the legal system, and the legal profession, and noted that she obstructed the disciplinary investigation in bad faith and was indifferent to making restitution. (Rule 1.15(d), 1.7(a)(2), 1.8(a), 3.4(c), 8.4(b)-(d).)

1 Guidelines for imposing discipline in conversion cases are set forth in Louisiana State Bar Ass’n v. Hinrichs, 486 So. 2d 116 (La. 1986).

7

• Crichton, J. concurred in part and dissented in part, stating his view that ordinary disbarment was too lenient and permanent disbarment would be more appropriate.

In re Armstrong, 15-283 (La. 4/10/15), 164 So. 3d 817: Respondent converted client funds totaling over $17,000 in up to ten cases for personal use. She operated the firm’s Monroe office, and apparently took money that clients had paid to the firm for court costs and/or fees. Respondent failed to answer the formal charges, and the facts were therefore deemed admitted.

• The Court ordered disbarment. The Court also ordered that respondent make restitution to her victims, including her former clients and former employer. The Court noted that the record supported a finding that respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system, and the legal profession, and that her misconduct caused actual harm. (Rules 1.3, 1.4(a)(3), 1.5(d), 1.5(f)(5), 8.1, 8.4(a)-(c).)

• Crichton, J. concurred in part and dissented in part, stating his view that disbarment was unduly lenient given respondent’s conversion and failure to cooperate with the ODC. He would permanently disbar respondent.

In re Southall, 14-2441 (La. 3/17/15), 165 So. 3d 894: The attorney mishandled her client trust account, resulting in commingling and conversion of client funds. The Hearing Committee noted that she had “no reasonable explanation” for her actions other than that “she is not proficient at math.”

• The Court imposed a three years suspension. The Court also ordered respondent to conduct a “complete audit” of her client trust account and make “any necessary restitution to her clients or third parties.” The Court noted that respondent’s conduct indicated “at least a high degree of negligence,” but noted she did not commit any other “fraudulent acts.” (Rules 1.5(f)(3), 1.15(a), 8.1(c), 8.4(c).)

• Crichton, J. concurred in part and dissented in part, finding that the three-year suspension was unduly lenient. Given the pattern of egregious

8

misconduct resulting in harm to clients, Justice Crichton supported a penalty of disbarment.

In re Conry, 14-1761 (La. 1/28/15), 158 So. 3d 786: Attorney converted approximately $188,000 of client funds for his personal use and failed to pay approximately $60,000 owed to third parties.

• The Court imposed permanent disbarment. The Court also ordered that respondent make restitution to his clients, the LSBA Client Assistance Fund, and all other third parties. The Court specifically noted that the attorney’s pattern of intentional misuse of funds caused actual harm and demonstrated a disregard for his clients and his duties as an attorney.

• Crichton, J., additionally concurred, noting that he found the “pattern of intentional and flagrant misconduct” in this case to be “particularly outrageous.” His continued disbursal of settlement funds belonging to one client to other clients “borders on a Ponzi scheme.” Also of note from Justice Crichton’s concurrence is his discussion of Respondent’s defense of having ADHD, as he observed that “even if respondent’s ADHD was not a “cause” of his misconduct and merely a contributing factor, it is, at the least, obvious from the outcome that respondent failed adequately to manage his disability.” Citing a recent Louisiana Supreme Court case, Justice Crichton reinforced the Court’s view that “ADHD does not deprive an individual of the ability to know the difference between right and wrong…it does [not] excuse respondent’s behavior.” In re Sharp, 09-2007 (La. 6/26/09), 16 So. 3d 343, 346.

In re Kenner O. Miller, Jr., 14-0538 (La. 5/23/14), 139 So. 3d 993: The attorney commingled, converted, and/or misappropriated for his own use $208,260.83. The amount included funds from the proceeds of settlements in personal injury cases due to clients and third-party medical providers. The attorney paid certain operating expenses, such as payroll and rent, directly from the trust account.

• Before the charges were brought, Respondent was previously disciplined for,

inter alia, neglecting legal matters, failing to communicate with clients, and failing to properly withdraw from the representation of clients. Respondent was placed on interim suspension after testing positive for cocaine and

9

suspended from the practice of law for 18 months. Respondent had not been reinstated from this suspension and thus remained suspended from the practice of law when the new formal charges were filed against him.

• The Court ordered permanent disbarment. The Court found that Respondent knowingly and intentionally violated duties owed to his clients and the legal profession. He also violated duties owed to the public, and caused significant actual harm to several clients and third-party medical providers. The Court found that Respondent’s conduct demonstrated a disregard for his clients and his duties as an attorney and accepted the recommendation of the Board, ordering Respondent permanently disbarred. (Rules 1.15(a), 1.15(b), 1.15(d), 8.4(a)-(c).)

In re Gary P. Duplechain, 13-2423 (La. 1/17/14) 131 So. 3d 843: Attorney used approximately $5,000 in funds from real estate title company escrow account to pay business operating expenses, including employee salaries, and abstract and title search fees associated with another client’s real estate venture.

• The Court imposed a three years suspension. The Court further ordered respondent to pay restitution to the title company, plus interest. Due to the fact that respondent used client’s funds to run his law practice, and failed to make restitution for the converted funds, the Court ordered as three-year suspension was appropriate.

10

4. UNAUTHORIZED PRACTICE OF LAW In re Seth Cortigene and Newton B. Schwartz, Sr., 13-2022, 13-2172 (La. 2/14/14), 144 So.3d 915: As background, in this consolidated disciplinary proceeding, respondent Cortigene was a Louisiana attorney and Schwartz was not licensed in Louisiana. However, at the time of the relevant facts, Cortigene was ineligible to practice law in Louisiana due to failure to pay bar dues and the disciplinary assessment. He had also failed to file a trust account registration statement and failed to comply with mandatory CLE requirements. Cortigene and Schwartz represented a client in connection with litigation over a work-related diving accident, and Schwartz attended and participated in the deposition of the client taken in New Orleans, although he was not licensed or admitted to practice pro hac vice in Louisiana at any time during the litigation. Cortigene, co-counsel in the litigation, was charged with facilitating Schwartz’s misconduct and failing to report it to disciplinary authorities.

• The Court imposed disbarment on Cortigene. The Court considered the presence of aggravating factors, particularly respondent’s prior disciplinary record and failure to report the Texas attorney to disciplinary authorities. (Rule. 5.1(c)(1), 5.5, 8.3(a), 8.4(a).) The Texas attorney, Schwartz, was enjoined for three years from seeking admission to the Louisiana bar or from seeking admission to practice in Louisiana on any temporary or limited basis.

In re Clarence T. Nalls, Jr., 13-2873 (La. 5/7/14), 145 So. 3d 1011: Due to a prior disciplinary matter, respondent’s suspension became effective while he was representing a defendant in a criminal matter. Respondent continued to correspond with the defendant about the status of his case for over a year after his suspension was imposed.

• The Court imposed disbarment. The Court noted that, when an attorney intentionally engages in the unauthorized practice of law with clear disregard to the authority of the Court, the consistent sanction is disbarment or permanent disbarment. (Rule 1.15(a), 1.15(d), 1.16(d), 5.5(a), 8.4(b), 8.4(c).)

11

5. CRIMINAL CONDUCT

In re Pryor, 15-0243 (La. 9/1/15) _179 So. 3d 566: Respondent represented a defendant charged with simple burglary of an inhabited dwelling. The prosecution’s main witness testified that Respondent came to his restaurant and offered him $300 to drop the charges against his client. When the witness refused the offer, Respondent offered $500 to the witness not to show up in court for the trial.

• The Court suspended respondent for one year and one day. The Court found that respondent knowingly, if not intentionally, violated duties owed to the public and the legal system, and even though no harm actually occurred, a significant potential for harm existed. In aggravation, the Court adopted the board’s findings of respondent’s prior disciplinary record, his refusal to acknowledge the wrongful nature of the conduct, and his substantial experience in the practice of law. (Rule 8.4(a), 8.4(b), 8.4(d).)

• Knoll, J. dissented on the sanctions and would have imposed disbarment.

• Guidry, J. dissented and would have imposed greater discipline.

• Crichton, J. concurred in part and dissented in part. He agreed with the majority’s finding that respondent violated the Rules, but dissented on the sanctions and would have imposed disbarment.

In re Jefferson, 15-508 (La. 5/1/15) 165 So. 3d 905: Respondent was convicted of ten felony criminal offenses arising from his involvement in multiple bribery, conspiracy, racketeering, and fraud schemes committed during his service as a member of the U.S. congress.

• The Court imposed permanent disbarment. The Court noted that his crimes “clearly warrant serious discipline.” (Rule 8.4(a), 8.4(c), 8.4(d).)

In re Syed A. Salat, 13-2619 (La. 1/17/14), 131 So. 3d 841: In 1992, respondent, with the cooperation of an employee of the EBR Clerk of Court’s office, entered into a scheme to alter filing dates on six lawsuits to make it appear the suits were

12

filed within the applicable prescriptive period. Respondent was criminally charged and convicted of six counts of filing false public records and sentenced to two years imprisonment on each count. He was disbarred. He applied for readmission to the practice of law in 1999, 2002, and 2007, and the Court denied all of these applications. In this case, he again applied for readmission.

• The Court ordered permanent disbarment. The Court found that respondent did not satisfy his burden of proof on readmission. He failed to make full restitution and did not accept responsibility for his misconduct. The Court found that he failed to prove by clear and convincing evidence that he possessed the requisite competence, honesty, and integrity to practice law in this state. Under the totality of the facts here, the Court could “conceive of no circumstance under which we would ever readmit petitioner to the practice of o law in Louisiana,” and found he had not demonstrated the “moral fitness” required to practice law.

In re Sean Daniel Alfortish, 13-2424 (La. 5/7/14), 145 So. 3d 1024: Respondent was president of the Louisiana Horsemen’s Benevolent and Protective Association, Inc. (“HBPA”). He was indicted by a federal grand jury on 29 counts of conspiracy and fraud charges relating to the HBPA. He pleaded guilty to a single felony count of conspiracy to commit mail, wire, healthcare, and identification document fraud; the remaining counts of were dismissed pursuant to a plea agreement.

• The Court ordered permanent disbarment. Because respondent conceded that the appropriate sanction was disbarment, the only question the Court had to consider was whether to order permanent disbarment. The Court did so, finding that his actions revealed a “fundamental lack of honesty and integrity.” Moreover, because he was in a position of public trust, as a former magistrate judge and the president of the HBPA, he was held to an even higher standard of conduct than an ordinary attorney. Finally, his actions received significant media coverage, and therefore harmed the public’s perception of the legal profession. (Rule 8.4(b), 8.4(c).)

• Knoll, J., dissented, and would not impose permanent disbarment. In re Chanci Shermaine Shaw, 14-0751 (La. 6/20/14), 141 So. 3d 795: Respondent filed suit on a client’s behalf after prescription had run, entered into a settlement without advising the client she had done so, and failed to pay the client any settlement proceeds or provide her with an accounting of the settlement. She

13

was indicted by grand jury with two counts of felony theft by fraud and two counts of filing false public records. Respondent ultimately pleaded guilty to the two counts of felony theft.

• The Court ordered permanent disbarment. The Court further ordered respondent to make restitution against her client. The Court found that the felony charges warranted “serious discipline.”

In re Steven L. Rushing, 14-2053 (La. 11/21/14), 152 So. 3d 138: Respondent was charged in federal court with one violation of mail fraud, which alleged that he devised a scheme to defraud insurance companies and medical providers and used the mail to execute the scheme. Specifically, he allegedly negotiated settlements on behalf of clients whom he represented in personal injury matters. While negotiating final settlement amounts, respondent would represent to his clients and the insurers that he would use a portion of the settlement proceeds to pay some or all of the client's outstanding medical bills. In reliance upon these representations, and a release of claims executed by the client, the insurer would send a check to respondent's office. Respondent would deposit it into his account and disburse his client's portion of the settlement. He would also execute checks payable to his client's medical providers, but he did not actually send these checks to the providers and instead converted those funds to his own use. He pleaded guilty as charged.

• The Court ordered permanent disbarment. In addition to respondent’s criminal conviction, he had two separate suspensions of over one year in length. (Rule 8.4(b), Rule 8.4(c).)

In re Elizabeth Ashley Brunet-Robert, 13-2929 (La. 5/7/14), 145 So. 3d 1018: Respondent engaged in various criminal activity, including possession and possession with intent to distribute various illegal narcotics; drawing unauthorized checks on her brother’s and father’s bank accounts, driving with a suspended license, failure to maintain proper insurance, and failing to appear in court (resulting in contempt charges). She pleaded guilty to a reduced charge of possession of a Schedule II controlled dangerous substance and was sentenced to four years at hard labor, with three and a half years suspended, and four years active supervised probation.

• The Court ordered respondent be suspended from the practice of law for three years. The Court noted that, should respondent seek reinstatement in the future, she will be required to show compliance with Supreme Court

14

Rule XIX, § 24(E)(3), which sets forth requirements for abstention from alcohol and drugs, and “demonstrates a full and sustained commitment to recovery.” (Rules 8.4(b), 8.4(c), and 8.4(d).)

• Clark, J., dissented, and would impose disbarment.

In re Wade P. Richard, 14-1684 (La. 10/3/14), 148 So.3d 923: Respondent arrested with suspended driver’s license, and found with 200 Xanax tablets; he was charged with possession with intent to distribute Schedule IV narcotics. He later plead guilty to misdemeanor (possession of drug paraphernalia).

• Court permanently disbarred respondent, finding his conduct violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer).

In re John Brewster Ohle, III, 14-1083 (La. 10/24/14), 149 So. 3d 1226: Respondent was indicted by a federal grand jury on various tax and fraud offenses. Essentially, the government alleged that respondent’s criminal conduct occurred as part of an effort to market, sell, and implement a tax shelter. Respondent, who is also a CPA, allegedly prepared fraudulent invoices to obtain referral fees on the transactions relating to this tax shelter. Furthermore, respondent allegedly embezzled at least $3 million dollars from a client’s trust account and willfully evaded taxes on approximately $6.5 million in income in 2001 and 2002. The government ultimately proceeded to trial on certain counts only, and, after a three week trial, the jury found him guilty. Respondent was sentenced to serve 60 months in a federal penitentiary, followed by a three-year period of supervised release. He was ordered to pay $5,553,680.74 in restitution plus the cost of prosecution, and ordered to forfeit $2,954,334 in proceeds traceable to the charged conspiracy, as well as his interest in the property detailed in the indictment.

• The Court permanently disbarred respondent. The Court noted that the facts of the case indicated, “[w]ithout a doubt,” that respondent had a “fundamental lack of honesty and integrity” which makes him “unfit to hold a license to practice law in this state.” The Court could “conceive of no circumstances under which we would ever allow respondent to be readmitted to the practice of law in Louisiana.” (Rule 8.4(a)-(d).)

6. LACK OF DILIGENCE AND COMMUNICATION

15

In re Bercier, 14-2352 (La. 3/27/15), 164 So. 3d 170: Attorney filed a lawsuit on client’s behalf after client terminated representation and without client’s knowledge or consent, and altered the envelope of the termination letter to conceal fact that he had known of the termination at time he filed lawsuit. He also failed to ensure pay off of a collateral mortgage on real property after completing a succession involving the property, and allowed the property to be sold “as is” without informing purchasers or the closing agent of the mortgage, resulting in purchasers having to pay mortgagee $23,000.

• The Court imposed a two year suspension. The Court also ordered

respondent to make restitution of $23,250. (Rules 8.4(a), 8.4(c).) In re Otha Curtis Nelson, Sr., 13-2699 (La. 5/7/14), 146 So. 3d 176: Respondent committed various violations, including several involving failure to communicate with clients. In one matter, he enrolled as counsel of record, but there is no indication he ever filed oppositions to a motion to dismiss and never made a court appearance on his client’s behalf. He never even informed the client he was no longer representing him. On another occasion with a different client, respondent accepted an advance deposit in a personal injury matter, then took no action at all in furtherance of the claim.

• The Court imposed a three-year suspension, with all but one year deferred. Additionally, after the active portion of his suspension, respondent shall be placed on supervised probation for a period of two years, subject to conditions. Any violation of the conditions of probation, or any other misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. (Rule 8.4.)

In re Mack Arthur Hollis, 13-2568 (La. 3/14/14), 135 So. 3d 596: Respondent was charged with neglecting a client matter resulting in prescription of a client’s personal injury claim, and misconduct with respect to an affidavit, including backdating it and notarizing it outside of the presence of the affiant.

• The Court imposed a suspension of one year and one day, and ordered respondent to make restitution to his clients in the amount of $7,000.

16

The Court found respondent acted negligently, knowingly, and intentionally. (Rules 1.1, 1.3, 3.3, 8.4.)

7. FRIVOLOUS LITIGATION

In re Madro Bandaries, 14-1435 (La. 12/09/14), 156 So.3d 1152: Respondent entered into a retainer agreement with a client that contained a provision that if there was “any dispute” between respondent and the client, “the proper venue for litigation would be the Parish of Orleans, State of Louisiana.” Respondent began making monetary advances to his client for a variety of purposes (ultimately $33,000), including travel and payment of her mortgage note relating to her Louisiana residence. When the relationship ended, respondent demanded repayment. The client engaged the services of a different attorney to represent her interests in the termination of the retainer agreement. Her attorney filed a Petition for Declaratory Relief asserting that the agreement was invalid and that no amounts were due. The following day, and before service of the client’s suit, respondent sued client and demanded reimbursement. In the meantime, three lawsuits were filed against Ms. Cassidy in the 10th JDC for the Parish of Natchitoches and in the Natchitoches City Court. Respondent also filed a lawsuit in Orleans Parish against the client’s business agent.

• The Court ordered a public reprimand of respondent. The Court found Respondent brought the Natchitoches litigation against Ms. Cassidy for the purpose of harassing her and that there was no basis in fact or law for these suits. The Court found the same with regard to the lawsuit filed against Mr. Gilhuly, Ms. Cassidy’s business agent. The Court stated that Respondent knowingly violated duties owed to the legal system and the profession. The Court determined that a downward deviation from the baseline sanction of suspension was warranted and publicly reprimanded respondent. (Rule 3.1, 4.4(a), 8.4(a), 8.4(c), 8.4(d).)

• Victory, J., dissented, and would have ordered a harsher sentence

• Weimer, J., dissented and would have imposed a harsher sentence

17

8. FALSE ADVERTISEMENT

In re Loughlin, 14-0923 (La. 9/26/14), 148 So.3d 176: The ODC brought disciplinary proceedings against Kearney Soniat du Fossat Loughlin for the language on his website stating or implying his firm was a “specialist” in maritime personal injury and death cases when such a specialization has not been recognized or approved in accordance with the rules and procedures established by the Louisiana Board of Legal Specializations.

• The Court ordered the formal charges against respondent be dismissed. The Court found that his actions were not taken with a culpable mental state, and it was undisputed his actions caused no harm to the public.

• Victory, J., dissented, and would publicly reprimand respondent and order him to attend continuing legal education on attorney advertising.

9. OUTRAGEOUS EXPENSES

In re David J. Mitchell, 13-2688 (La. 5/7/14), 145 So.3d 305: Insurance defense attorney sought reimbursements for non-calendared, non-documented, or non-existent events over a period of several years, totaling in excess of $20,000.

• The Court ordered the attorney permanently disbarred. Respondent’s conduct violated the following provisions of the Rules of Professional Conduct: 1.5(a) (fees), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(a) (violation of the Rules of Professional Conduct).

o The Court concluded that the evidentiary foundation was proper, and found that Respondent knowingly and intentionally violated duties to his client and the legal profession, resulting in actual harm to his client, the firm, and the profession. The Court found that

18

Respondent’s conduct fell squarely within Guideline 1 (repeated or multiple instances of intentional conversion of client funds with substantial harm) of the permanent guidelines, and permanently disbarred Respondent.

• Weimer, J., concurred and dissented in part, concurring with and

subscribing to the majority’s opinion in all aspects except the sanction, which he found was unnecessarily punitive and inconsistent with the Court’s previous sanctions for similar misconduct.

Justice Marcus R. Clark was born on February 24, 1956, in Sulphur, Louisiana to Gerald and Hilda Clark. He credits his dad, Gerald, for preparing him best for his work in public service by teaching him the importance of a strong work ethic at an early age, by working in the family owned laundromat.

After graduating Sulphur High School in 1974, Justice Clark enrolled in Northeast Louisiana University, now known as the University of Louisiana at Monroe, and graduated in 1978 with a Bachelor of Arts Degree in Criminal Justice. He immediately went to work for the Ouachita Parish Sheriff’s Department in Monroe where he earned the title of Detective before leaving in 1982 to attend the Paul M .Hebert Law Center at Louisiana State University. In 1985 he graduated with his Juris Doctorate and was offered a job with the Ouachita Parish District Attorney’s Office and by 1990 had earned the title of Chief Felony Drug Prosecutor. He is the Co-Author of the Louisiana Drug Asset Forfeiture Law and Co-Author of the National TOP Gun Seminar.

Justice Clark’s began his judicial career in 1997 when he was elected District Judge to the Fourth Judicial District Court. During his tenure as judge he volunteered to serve as a Drug Court Judge from 2000-2001 for the newly developing Drug Court Program, and as Chief Judge from 2004-2006. He is a member of the Louisiana Bar Association and Fourth Judicial District Court Bar Association and past member of the Louisiana District Judges Association and Louisiana District Judges Association Executive Committee. He has served on a number of committees and boards designed to move the judicial system forward, including the New Judgeship Committee, Ad Hoc NCSC Study Committee, Criminal Judges Committee, Salary & Personnel Committee, Court Technology Committee and the Supreme Court Uniform Rules Committee. In addition to professional committees he has volunteered to serve on a number of community awareness committees as well. He enjoys lecturing and has been a repeat lecturer for the North Delta Police Training Academy, Louisiana Sheriff’s Association, Louisiana District Attorney’s Association, and District Judges Association.

In 2009, Justice Clark was elected to the Louisiana Supreme Court. He currently serves on several boards and committees including Chairman of the Budgetary Control Board, the Sheriff’s Executive Management Institute Board, the Internal Audit Committee, the Human Resources Committee, and is the Supreme Court’s liaison to the Louisiana District Judges’ Association.

Justice Clark’s home is in West Monroe, where he resides with his wife Allyson, a neo-natal nurse at St. Francis Medical Center, and his two children, Nicole and Cooper.

Justice Scott J. Crichton Associate Justice

Scott Crichton is Associate Justice of the Supreme Court of Louisiana, having qualified without opposition on August 22, 2014. His ten year term began January 1, 2015. Prior to his election to the Supreme Court, Scott served 24 years as a judge with the First Judicial District Court, presiding over 25,000 cases in both the civil and criminal divisions. Scott is a past president of the Louisiana District Judges Association; a past member of the Advisory Committee to the Supreme Court on Revision of the Judicial Canons, the Louisiana Judicial College Board of Governors, the Court Rules Committee (Rules for Louisiana District Courts and Juvenile Courts, appendices and Numbering Systems for Louisiana Family and Domestic Relations Procedures), and the Criminal Best Practices Committee. He has served numerous terms as chair or co-chair of the Shreveport Bar Association Continuing Legal Education and has served on the CLE Committee of the Louisiana State Bar Association. In 2000, by order of the Louisiana Supreme Court, Scott served as a judge pro tempore for the First Circuit Court of Appeal. Scott is certified by the National Judicial College in program design and is a graduate of the inaugural class of the Louisiana Judicial Leadership Institute. Scott now serves as co-chair of the Louisiana Judicial College as well as various other supreme court committees. Since 2007, Scott has presented a PowerPoint teen consequences program, Don’t Let This Be You, to more than 20,000 teenagers/parents at various high schools, churches and community groups as well as another program, Sexting, Texting and Beyond, for teenagers, parents and teachers on electronic laws and related misbehavior. He also serves on the vestry of St. Mark’s Episcopal Church in Shreveport. He received a Bachelor of Science degree in 1976 from Louisiana State University and a Juris Doctor degree in 1980 from Paul M. Hebert LSU Law Center. During the 1980s, he served as an assistant district attorney for Caddo Parish, maintained a civil practice, and served as an adjunct instructor of Business Law at LSU-Shreveport. Scott and his wife, Susie, live in Shreveport and have two adult sons – one of whom is an associate in a Shreveport law firm and the other, a law clerk for a district judge.