author: HAZOURI, J. FARMER, C.J.,

text:
    Tom BARKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3188.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Rehearing Denied July 28, 2004.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

This appeal arises from a civil commitment proceeding brought by the State of Florida against Tom Barker pursuant to Chapter 394, Florida Statutes. After a jury trial, Barker was found to be a sexually violent predator and the trial court entered a Judgment and Civil Commitment Order committing Barker to the custody of the Department of Children and Family Services until such time as it is determined that it is safe for Barker to be released. Barker appeals the Verdict, Judgment, and Order of Civil Commitment rendered on July 17, 2002 and the Order denying his Motion to Set Aside Verdict and Judgment and Motion for New Trial rendered on September 13, 2002. His sole issue on appeal is the trial court’s denial of his Motion to Bifurcate. We affirm.

The State filed a petition initiating proceedings to have Barker declared a sexually violent predator in October 1999 while Barker was incarcerated on a conviction for burglary with assault or battery. As the basis for the petition, the State alleged: 1) the burglary with assault or battery that Barker was convicted of was a sexually motivated offense, 2) Barker had been charged in two prior incidents involving sexually violent offenses, and 3) Barker suffers from a mental abnormality or personality disorder which makes him likely to engage in acts of sexual violence if not confined in a secure facility for long term control, care and treatment.

The trial court determined that probable cause existed to believe that Barker was a sexually violent predator and therefore eligible for commitment. Barker was then ordered to be detained while he awaited further proceedings. Prior to the civil commitment trial, Barker filed a Motion to Bifurcate. Barker argued that the trial should be bifurcated because the jury would be required to apply two different standards of proof during the proceedings. The two burdens of proof arise from the elements that the State was required to establish at trial. Pursuant to section 394.912(1), Florida Statutes (2002), in order to establish Barker as a sexually violent predator, the State was required to prove two elements: 1) Barker has been convicted of a sexually violent offense and 2) Barker suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

With respect to the first element, section 394.912(9) contains a list of crimes that are considered sexually violent offenses. In most civil commitment proceedings under this chapter, the underlying offense is one of the enumerated offenses and therefore the State need only show that one of these crimes has been committed in order to establish the first element at trial. However, in Barker’s case, the underlying conviction was a conviction for burglary with assault or battery. This is not one of the sexually violent offenses enumerated in section 394.912(9). Therefore, the State was required to prove that the burglary was sexually motivated. If the State can prove that the burglary was sexually motivated, it would fall within the catch-all provision of section 394.912(9)(h) which defines a sexually violent offense as: any criminal act that, either at the time of sentencing for the offense or subsequently during civil commitment proceedings, has been determined beyond a reasonable doubt to have been sexually motivated.

Once the State establishes beyond a reasonable doubt that the burglary was sexually motivated, then the State must also present clear and convincing evidence to establish the second element: the mental abnormality or personality disorder making Barker likely to engage in future acts of sexual violence. Barker argued that there was a likelihood that the jury would be confused by the differing standards of proof and requested that the trial be separated as follows: First, the jury would hear the evidence relating to the burglary and be required to make a determination whether it was established beyond a reasonable doubt that the burglary was sexually motivated. If the jury found that the burglary was sexually motivated, then during the second part of the trial the State could present evidence relating to Barker’s alleged mental abnormality/personality disorder and his likelihood to commit offenses in the future. However, if the jury determined that the State had not established beyond a reasonable doubt that the burglary was sexually motivated, then the trial would end and there would be no need to proceed further.

After hearing argument on the motion, the trial court entered an Order denying Barker’s Motion to Bifurcate. The trial court found as follows:

The standard jury instructions relative to this case do not contemplate that there would be a bifurcated trial on the establishment of any of the three elements as set out in those instructions. This Court cannot presume that a jury will be confused by the instructions and sees no reasons for a bifurcated trial.

At the start of the trial, Barker renewed his Motion to Bifurcate. He provided no additional support for his motion and the trial court again denied the motion. During the trial, the State presented testimony and evidence relating to: the November 1994 incident which resulted in his conviction for burglary with assault or battery, the March 1994 incident that Barker was never officially charged with, and the 1985 conviction in Kansas. In addition, the State presented extensive testimony from several psychologists relating to Barker’s mental state. The experts testified that Barker suffers from a personality disorder which makes him likely to be dangerous to the public without further treatment of his disorder. The jury found that Barker was a sexually violent predator and the trial court entered a Judgment and Order of Civil Commitment in accordance with the jury verdict.

A trial court’s decision to bifurcate is generally subject to an abuse of discretion standard of review. See Rose-man v. Town Square Ass’n, 810 So.2d 516, 521 (Fla. 4th DCA 2001). On appeal Barker makes essentially three separate arguments in support of his contention that the trial court’s failure to bifurcate violated his right to due process. First, he argues that it is likely that the jury was confused when asked to apply two different standards of proof to the separate elements that the State was required to prove at trial. He contends that this confusion may have caused the jury to apply the lesser “clear and convincing” evidence standard to the entire proceeding. This is the argument upon which his pre-trial Motion to Bifurcate was based. In denying the motion, the trial court determined that the jury instructions adequately addressed the two standards of proof and did not contemplate that a bifurcated trial would be necessary. We agree. The instructions clearly state that before the jury could find that the burglary was sexually motivated, the State must prove, beyond a reasonable doubt, that one of the purposes for which the person committed the crime was sexual gratification. The instructions given to the jury were as follows:

To prove the respondent, Tom Barker, is a sexually violent predator, the State must prove each of the following four elements by clear and convincing evidence.
1.Tom Barker has been convicted of a sexually violent offense; and
2. Tom Barker suffers from a mental abnormality or personality disorder; and
3. The mental abnormality or personality disorder causes Tom Barker to have serious difficulty in controlling his behavior, and his inability to control his behavior is sufficient to distinguish him from dangerous recidivists convicted in ordinary criminal cases; and
4. The mental abnormality or personality disorder makes him likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.
Before the Respondent, Tom Barker, can be confined in a secure facility, the State has the burden of proving, by clear and convincing evidence, that he is a sexually violent predator.
Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.
A sexually violent offense is:
Any criminal act that has been determined beyond a reasonable doubt to be sexually motivated. In this cause the criminal act in question is the burglary of a conveyance with assault or battery occurring on November 20th, 1994. However, before you can find the crime was sexually motivated, the State must prove, beyond a reasonable doubt, that one of the purposes for which the person committed the crime was sexual gratification. If you have a reasonable doubt about whether or not the crime was sexually motivated, then you should find the act was not sexually motivated.
A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt may not influence you to find the crime was not sexually motivated if you have an abiding conviction that it was. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction that the act was sexually motivated, or, if having a conviction, it is one which is not stable but one which wavers and vacillates, then it has not been proven beyond every reasonable doubt.

There is no reason to believe, based on these jury instructions, that there is a likelihood that the jury was confused.

In addition, Barker’s counsel focused on the reasonable doubt standard during closing argument. He argued as follows:

The judge is going to instruct you that you must find sexual motivation beyond a reasonable doubt, and here there’s plenty of reasonable doubt as to sexual motivation because it comes only from one person, Kevin Sossi (an eyewitness).
We don’t have to prove that it (the burglary) was something other than for purposes of sexual motivation. The burden is on the State to prove sexual motivation beyond a reasonable doubt.

During deliberations, the jury did not ask any questions which would evidence any confusion concerning the burden of proof.

Barker’s second argument on appeal relates to the evidence presented at trial regarding the two prior “similar” incidents where Barker was accused and/or convicted of sexual battery. Barker argues that had the trial been bifurcated, this similar fact evidence would not have been admissible with respect to the first element. Therefore, allowing the jury to hear this evidence prior to making its determination of whether the burglary was sexually motivated unfairly prejudiced him. Barker did not make this argument in his written Motion to Bifurcate. The written motion addressed only his argument regarding the varying standards of proof. The transcript of the hearing on the motion reflects that Barker briefly argued this to the trial court, but he did not obtain a ruling on this issue. The trial court never made any determination regarding the admissibility of the prior bad act evidence. Therefore, we find that the issue is not preserved for appellate review. See Carratelli v. State, 832 So.2d 850 (Fla. 4th DCA 2002) (in order to preserve an argument for appellate review, a party must make the objection sufficiently precise to fairly apprise the trial judge of the grounds for the relief sought and must obtain a ruling on the objection); Armstrong v. State, 642 So.2d 730 (Fla.1994); Filan v. State, 768 So.2d 1100 (Fla. 4th DCA 2000).

In addition, Barker did not object to the admission of evidence relating to the prior incidents during the trial. We also note that Barker did not request a limiting instruction to the jury that the evidence of prior similar acts should not be considered by the jury in making its determination as to whether the burglary was sexually motivated.

Barker’s third argument on appeal relates to the expert testimony that the State presented during trial. Several psychologists testified that based on their review, Barker suffers from a mental abnormality, he lacks volitional control, and is likely to commit future acts of sexual violence. Barker argues that this testimony is only relevant to the second element that the State was required to prove. He asserts that if the trial had been bifurcated, this evidence would not have been admissible during the first part of the proceeding. Therefore, he contends that allowing the jury to hear the expert testimony during the same proceeding prejudiced the jury in its determination of whether the burglary was sexually motivated and improperly bolstered the State’s evidence relating to the first element. Barker argues:

The fundamental unfairness in a non-bifurcated trial rests in the fact that a respondent cannot effectively mount a defense to the allegation that the underlying felony conviction was sexually motivated when the jury is simultaneously exposed to expert testimony opinion that he is a sexually violent predator who will more likely than not commit future acts of sexual violence.

As pointed out by the State, Barker makes this argument for the first time on appeal and therefore has failed to preserve this as error. We agree. See Reid v. State, 799 So.2d 394 (Fla. 4th DCA 2001)(in order to preserve an issue for appeal, counsel must preserve the issue by making a specific objection to the admission of evidence on the same grounds as raised on appeal).

We therefore affirm the trial court’s denial of the Motion to Bifurcate.

AFFIRMED.

GUNTHER, J., concurs.

FARMER, C.J., dissents with opinion.

FARMER, C.J.,

dissenting.

With abundant respect for the majority, I fear that our Court’s opinion today may misapprehend the precise issue raised by defendant. I am also afraid that his arguments may not be fairly portrayed in our opinion. I personally do not read his argument on appeal to be directly concerned with whether the jury instructions were confusing or with the use of inadmissible evidence. I believe that the real issue and argument are far more provocative than we have indicated.

As I understand defendant’s brief, this case concerns what he describes as the state’s two-part burden in attempting to commit a man indefinitely as a sexually violent predator under the “Jimmy Ryce Act” (JRA). See §§ 394.910-.930, Fla. Stat. (2003). Essentially defendant does not really argue error in the jury instructions or evidence used to prove each of these two parts. Nor does he contest the fact that the text of the applicable rule of procedure could allow a trial judge to deny a motion to try the case in two stages, separating the first part from the second part.

Instead he asserts that under the circumstances of this case, enforcing the statute and rule as written denies him due process of law. He says that it is unfair to the defendant to try the two requisite showings together in a single, uninterrupted proceeding. Doing so, he argues, gives the state a significantly unfair advantage in proving the first part of its burden while disadvantaging him in defending on that issue. Thus, he acknowledges what the rule provides, but asserts instead that the application of the rule denies him due process of law.

This process employed in his trial, he argues, raises significant doubts about the reliability of any jury determination on that first part. The consequence, he continues, of an unreliable determination on the first part is that he is reasonably likely to suffer an erroneous deprivation of his all-important interest in personal liberty— i.e., he will be confined indefinitely, perhaps for as long as the rest of his life — if the jury believes the state’s experts about the second part. In contrast, he points out, the cost to the state of bifurcating the two parts is non existent, nothing at all, no disadvantage, while the cost to him of failing to do so is catastrophic. Because there is no adverse consequence to the state from such a bifurcation, he argues that it should have been granted as a matter of law. In short, the essential question presented is whether trying both aspects of the sexual predator claim against him in a unitary proceeding satisfies all the constitutionally mandated process due him.

It is appropriate to expand on the argument he presents, prominently using defendant’s own lawyer’s words. Under the JRA, there are two things the state must prove to commit someone as a sexually violent predator: (a) that defendant has been convicted in the past of a sexually violent offense; and (b) that he suffers from a present mental disorder making him likely to engage in acts of sexual violence if permitted to remain free. This is what he refers to as the state’s two-part burden in the commitment case. He asserts that part (a) looks backward to past conduct, part (b) forward to the future from the present.

As to part (a), under the statute there are three alternative methods for the state to satisfy its burden of proving a past conviction of a sexually violent offense:

(1) it can show that he was convicted of a specific felony enumerated in the statute;
(2) it can show a conviction of a comparable offense in this state or any other state or federal offense; or
(3) it can show that he was convicted of any crime that was shown at sentencing or in the later JRA civil commitment proceeding to have been sexually motivated.

In this case, defendant was charged under alternative (3): the state alleged that he had been convicted in 1996 of an unenu-merated offense of burglary that was in fact sexually motivated, even though it was not apparent at the time of the conviction. Because neither the nature of the crime itself, nor the sentencing for that conviction, reflected any sexual motivation, the state had the burden at the trial on the JRA civil commitment claim to prove beyond a reasonable doubt that defendant’s 1996 conviction for burglary was in fact sexually motivated.

Here defendant notes that in most JRA civil commitments the state will rely only on one of the enumerated offenses in alternative (1) to prove a past conviction. A past conviction for one of the enumerated offenses in alternative (1) does not require any independent proof of sexual motivation. The fact of a violent sexual offense is apparent because by their very nature alternative (1) crimes are violent sexual offenses. Thus the first part of the state’s burden in most cases is not really an issue of contention in the majority of JRA civil commitment trials. Proof of one of the enumerated offenses in alternative (1) is done by a certified copy of the conviction itself or of the prison record. The case is then fought primarily on the second part, whether defendant has such a present propensity to commit violent sexual offenses that he is currently a danger to the public.

But as here, defendant asserts, when the state relies on an alternative (3) conviction, a different trial dynamic necessarily presents itself. Unless defendant has previously admitted that such a conviction— here, a burglary — was sexually motivated, the state must adduce additional evidence from the past showing an actual sexual motivation not apparent from the crime itself. The state will have to dig into the murky issue of the particular intent with which defendant did something years in the past to prove the predicate conviction. It is important to appreciate that whether a person did an act with a certain intent is not amenable to expert opinion. The state must prove the fact of sexual motivation from eye witnesses, surrounding conduct and circumstances and similar kinds of fact evidence. Its burden is to prove this predicate beyond a reasonable doubt.

In contrast, part two of the state’s burden will be spent almost exclusively in evidence about defendant’s present and future propensities. The state’s evidence will focus on current and future inclinations: whether the defendant has a present propensity to commit such violent sexual offenses that he is currently a danger to the public. For this issue, the state will place almost exclusive reliance on expert testimony and related evidence. Moreover this later part will be subject to a lessened burden of proof.

Defendant thus argues that the differing dynamics facing the jury in part one of the state’s burden, focusing only on past conduct, and then in part two, focusing only on present and future propensities, are the cornerstone of a structural unfairness in a unitary, uninterrupted trial. When the trial is not bifurcated, the jury hears all at one time the evidence of a present propensity to commit violent sexual offenses, even while it is also hearing evidence as to the intent behind a past criminal act that on its face has no sexual aspects.

In this circumstance, defendant argues, he is severely hampered in defending against the state’s claim that his old conviction was in truth sexually motivated. After the jury has been subjected to considerable expert testimony about defendant’s long propensity to seek sexual gratification through violence, a primary force in his life, it would hardly be surprising if the ordinary juror found enormous difficulty in ascertaining and assessing this past conduct solely by reference to fact evidence from the past. Given the intended effect of the expert opinion propensity evidence, the reliability of any jury determination that the past non-sexual crime was in fact sexually motivated is called profoundly into question.

I pause at this point for an observation from the cases. In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the Court upheld the Kansas equivalent of Florida’s JRA. In doing so, the Court emphasized that the Kansas act did not suffer from a substantive due process defect in its involuntary and indefinite commitment of sexual offenders who were dangerous to the public, because, among other things:

“The statute ... requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.”

521 U.S. at 357, 117 S.Ct. 2072. Then, in relying on Hendricks to uphold the JRA, the Florida counterpart to the Kansas statute, the Florida Supreme Court explicitly emphasized that under JRA “only individuals convicted of a sexually violent offense are eligible for commitment ...” Westerheide v. State, 831 So.2d 93, 100 (Fla.2002).

The requirement of a conviction for a past violent sexual offense serves to insure that persons will not be indefinitely committed under JRA based only on expert opinion evidence as to propensities alone. It represents a legislative belief that indefinite commitments without a concrete instance of past sexually violent conduct might result in commitment of someone not actually having such a propensity, in spite of expert opinion that he does. The fact that defendant has actually once before committed a violent sexual offense serves to reinforce scientific opinion that he has a propensity to do so. In short the very constitutionality of JRA depends on the requirement that the state prove both parts of the two-part burden with a high degree of reliability., I repeat, first the state must prove that defendant was convicted in the past of a sexually violent offense; second, the state must prove a present propensity making him dangerous to the community. One without the other is not enough; the validity of JRA laws rests on the combination of past conduct with present dangerous propensities.

It is constitutionally understandable that Florida would require that defendants be guilty of past convictions in the first part of the state’s JRA commitment burden. A criminal conviction carries a high degree of reliability because of the requirements of proof beyond a reasonable doubt and a unanimous jury. The fact that the past conduct is based on a criminal conviction allows a high level of confidence that defendant really did engage in conduct from which society may now be thought in danger.

But the problem is that JRA has also broadened the universe of predicate offenses beyond those explicitly sexual on which to found a claim that defendant has propensities to engage in violent sexual misconduct. In alternative (3) of the JRA, the statute includes past offenses not having anything to do with sex. In fact, the state has added the entire roster of its criminal code — both misdemeanors and felonies, I might add — to be eligible to serve as predicate offenses, so long as it can prove that when they were committed they were sexually motivated. I emphasize that the state has not limited such offenses to those that were shown in the original criminal proceeding itself to have been sexually motivated. It has allowed itself the litigation right to prove years after a conviction that the non-sexual nature of the crime masked an act of sexual violence. In this case the state relies solely on this alternative for the past conduct part of its burden.

it is peculiarly because of this alternative (3) that defendant’s contention of “different trial dynamics” has palpable weight. The fact about the predicate conviction that the state is allowed to try to prove in alternative (3) concerns that most unfathomable of all human attributes — a hidden, secret intent behind a person’s behavior. And here we are not talking of past conduct in general but specific conduct, perhaps years in the past, for which the defendant was duly convicted but which at the time had no articulated sexual motivation.

As I have already observed, this formerly unstated intent is to be shown in the usual way by fact evidence of attendant circumstances, surrounding conduct, and the like. But this leads to a number of questions. Is the state entitled to use “other crimes, wrongs or acts” (“Williams Rule”) to show this old intent — evidence that was then inadmissible for the crime on trial as being unrelated to its elements but is now relevant to the new fact in issue? See § 90.404(2), Fla. Stat. (2003). Could the state attempt to prove that in 1996 defendant committed a burglary out of sexual motivation by adducing proof of sexual conduct that was not itself a crime? Could the state use evidence of sexual offenses not contemporaneous with the burglary — say, years before or years after? What is the effect on the jury, in determining the second part of the state’s burden, of Williams rule evidence admitted only to prove the first part of the state’s burden? Does the effect of these kinds of evidence on the jury substantially weaken the force of the mandatory requirement of a past criminal conviction of a sexually violent offense to something of less significance than JRA appears to require? If so, does that threaten the constitutionality of JRA?

If the state is allowed to use an uninterrupted, unitary trial for both JRA burdens, and the jury thereupon is exposed to all of the state’s propensity evidence before it decides the issue of past conduct resulting in a criminal conviction, how much confidence can we place in the correctness of the jury’s determination as to sexual motivation for the predicate conviction? How reliable can the fact finding be that “only [an] individual[ ] convicted of a sexually violent offense [was] eligible for commitment under [JRA]”? Westerheide, 831 So.2d at 100. I think the very force of these questions demonstrates the constitutional defects in trying this alternative (3) kind of JRA case without bifurcating the first part of past conduct from the second part of propensity. It needlessly casts a cloud of grave doubts over the fairness of the procedures used and the reliability of the outcome.

The United States Supreme Court has made clear in several cases that “the function of legal process is to minimize the risk of erroneous decisions.” [e.s.] Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); Matheivs v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). It has also repeatedly acknowledged that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington, 441 U.S. at 425, 99 S.Ct. 1804; Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); see also Hendricks, 521 U.S. at 357, 117 S.Ct. 2072 (“We have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and eviden-tiary standards.”).

And defendant’s argument reminds us that there is no single, all purpose test for due process; the nature and circumstances of each claim call for individualized consideration:

“ ‘Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ‘(D)ue process is flexible and calls for such procedural protections as the particular situation demands.’ Accordingly, resolution of the issue whether the ... procedures provided ... are constitutionally sufficient requires analysis of the governmental and private interests that are affected. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” [e.s., e.o.]

Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see also Santosky v. Kramer, 455 U.S. 745, 774-75, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (Rehnquist, J., dissenting) (“Due process of law is a flexible constitutional principle. The requirements which it imposes upon governmental actions vary with the situations to which it applies.... Courts must examine all procedural protections offered by the State, and must assess the cumulative effect of such safeguards. As we have stated before, courts must consider ‘the fairness and reliability of the existing ... procedures’ before holding that the Constitution requires more.”).

Thus it is clear to me that defendant’s appeal requires us to do more than simply point to the rules of civil procedure, and label the decision discretionary, to justify an affirmance of the trial court’s refusal to bifurcate the past conduct element from the propensity element in this JRA trial where the state relied on alternative (3) to prove a past criminal conviction. Instead we must “examine [the] procedural protections offered by the State, and ... assess the cumulative effect of such safeguards.” Santosky, 455 U.S. at 775, 102 S.Ct. 1388 (Rehnquist, J., dissenting).

We must, in short, determine what process is due to satisfy the constitutional imperative of “such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334, 96 S.Ct. 893. Specifically we must ask whether the rule’s discretion to deny bifurcation satisfies the requirement of constitutional sufficiency. We must weigh the interest of defendant, his right to liberty, against the burden imposed on the state by denying bifurcation. We must assess the risk that a denial of bifurcation might lead to an erroneous determination on the past conduct issue.

When I engage in this constitutional analysis, I come out of it with grave doubts about the reliability of this jury finding that the 1996 burglary was sexually motivated. In the presence of the state’s considerable evidence of defendant’s existing propensity to commit violent sexual offenses, I simply cannot be confident that any jury would base a determination on defendant’s past conduct solely on the basis of the surrounding circumstances and actions contemporaneous with the event. I very much doubt that at this point any jury could truly disregard the state’s propensity evidence. If we can be so solicitous of the comparable trial dynamic when punitive damages are sought and routinely require bifurcation, see W.R. Grace & Co.Conn. v. Waters, 638 So.2d 502 (Fla.1994) (trial court required to bifurcate amount of punitive damages from liability therefor), I don’t see why trial courts should not be required to bifurcate the trial of part (a) from part (b) in these alternative (3) cases.

The refusal to bifurcate simply asks too much of citizen fact-finders to be fair to defendants. It is like asking a jury to squeeze lemon juice into their milk but then to strain it out before drinking. They might try very hard, but little lemon juice will be removed. On the other hand, the jury could drink their milk before squeezing the lemon juice into the glass. In that way, they could have both the sweetness of the milk and the tartness of the juice without forfeiting either.

I would reverse for a bifurcated trial before a different jury.

      . The two prior incidents alleged by the State were a 1985 conviction in a district court in Kansas for one count of unlawful restraint and one count of sexual battery and a March 1994 arrest by the Riviera Beach Police Department that resulted in Barker being charged with one count of sexual battery with force, one count of simple battery, and one count of false imprisonment. However, no formal charges were ever filed for the March 1994 incident and Barker was never convicted of any crimes with regard to that incident.

      . "Sexually motivated” means that one of the purposes for which the defendant committed the crime was sexual gratification. § 394.912, Fla. Stat. (2002)

      . It should be noted that any potential jury confusion could have been addressed through a revised verdict form. The verdict form that was given to the jury did not distinguish between the two elements that the State was required to prove. The verdict form only asked the jury one question: whether or not the jury unanimously found that Barker was a sexually violent predator. Perhaps a clearer way to recognize the two elements would have been to first ask the jury if it found beyond a reasonable doubt that the burglary was sexually motivated. If no, then the jury would end its deliberation. But, if the jury answered yes, the jury would have been required to answer the second question which was whether Barker is a sexually violent predator. However, the record reflects that Barker never objected to the verdict form and did not ask for a form containing these two separate questions.

      . See Fla. R. Civ. P. 1.270(b) (“The Court in the furtherance of convenience or to avoid prejudice may order a separate trial of any claim ... or of any separate issue ... or issues.”).

      . See § 394.912(10), Fla. Stat. (2003) (" ‘Sexually violent predator' means any person who (a) Has been convicted of a sexually violent offense; and (b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.”).

      . See § 394.912(9), Fla. Stat. (2003) (" ‘Sexually violent offense' means; [paras, (a) through (f) ]; (g) any conviction for a felony offense in effect at any time before October 1, 1998, which is comparable to a sexually violent offense under paragraphs (a)-(f) or any federal conviction or conviction in another state for a felony offense that in this state would be a sexually violent offense; or (h) any criminal act that, either at the time of sentencing for the offense or subsequently during civil commitment proceedings under this part, has been determined beyond a reasonable doubt to have been sexually motivated.”).

      . The text for alternative (3) under JRA is thus:
      "Any criminal act that, either at the time of sentencing for the offense or subsequently during civil commitment proceedings under this part, has been determined beyond a reasonable doubt to have been sexually motivated.” [e.s.]
      § 394.912(9)(h), Fla. Stat. (2003). The use of the sentencing record, as well as the use of the past perfect form of the verb raise significant questions. Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), only evidence (other than criminal history) submitted to the jury in the criminal trial may be used to enhance punishment. Hence I doubt that the JRA statutory text "at the time of sentencing” means anything other than what was adduced at the criminal trial or was available to be adduced then. The past perfect form of the verb, "to have been sexually motivated,” means that the state is limited to evidence of conduct contemporaneous with the crime underlying the conviction to prove that it was sexually motivated.

      . Westerheide involved mostly facial challenges to the JRA. The court’s decision addresses the facial substantive due process, double jeopardy and equal protection issues applying to JRA generally. The opinion also addressed a procedural due process issue relating to the burden of proof. It did not consider the procedural due process issue raised in today’s case. As Westerheide itself said:
      “To the extent that Westerheide’s due process claims turn on factual disputes, such claims should have been presented to the trial court and will not be addressed for the first time on review by this Court.”
      831 So.2d at 105. Defendant here has preserved his due process issue.

      . I need hardly add that this later addition to a conviction that was final without proof of sexual motivation has no counterpart for defendants. After their conviction becomes final, criminal defendants generally cannot under any circumstances attempt to prove in some later civil proceeding involving the state that they actually lacked criminal intent when they committed the crime for which they were duly convicted.


source: Caselaw Access Project

author: PER CURIAM. WEIMER, J.,

license: Public Domain

text:
    In re Robert T. DeFRANCESCH.
    No. 2004-B-0289.
    Supreme Court of Louisiana.
    July 2, 2004.
    Charles B. Plattsmier, G. Fred Ours, Baton Rouge, Counsel for Applicant.
    Ralph Capitelli, New Orleans, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert T. DeFrancesch, an attorney licensed to practice law in Louisiana but currently on interim suspension.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The underlying facts are not seriously disputed. In 1999, Nicole Wattigney retained respondent to represent her in a criminal matter stemming from a misdemeanor drug possession charge. Ms. Wat-tigney ultimately pleaded guilty to that charge. After the representation ended, respondent and Ms. Wattigney had sexual relations on several occasions over a period of four to six months, in exchange for which respondent provided financial assistance to Ms. Wattigney.

In 2001, Ms. Wattigney was arrested in Jefferson Parish and charged with felony drug possession. Respondent agreed to handle the matter for a fee of $2,000, which Ms. Wattigney paid in installments that were due weekly. After some negotiation with the Jefferson Parish District Attorney’s Office, respondent arranged for Ms. Wattigney Uto participate in a pretrial diversion program. However, Ms. Wattigney declined this opportunity and decided that she would prefer to plead guilty to the criminal charges.

On the morning of Monday, October 15, 2001, respondent appeared in court with Ms. Wattigney for a hearing in the criminal case. Ms. Wattigney did not make her fee installment payment that day, so respondent proposed that she accompany him to Mississippi for a sexual rendezvous as a “punishment” for failing to pay timely. Respondent told Ms. Wattigney to call him the next day, Tuesday, October 16, 2001, to confirm the details of the arrangement. Ms. Wattigney did not call respondent on Tuesday, but instead sought the advice of her parents regarding respondent’s demands.

Ms. Wattigney’s father contacted the ODC, and in turn, the ODC’s staff investigator conducted a telephone interview of Ms. Wattigney and her father. Following the interview, the ODC proposed that it be allowed to tape record conversations between Ms. Wattigney and respondent. Ms. Wattigney agreed to allow the conversations to be tape recorded.

On Friday, October 19, 2001, the ODC’s investigator initiated two conference calls between Ms. Wattigney and respondent. During both conversations, respondent explained to Ms. Wattigney that she would be required to have sex with him as a “punishment” for not paying her fee installments on time. Ms. Wattigney expressed reluctance to agree to respondent’s demands, explaining that she had recently been engaged and was “trying to make everything right” with her fiancé. Respondent acknowledged that Ms. Wat-tigney might not be “enthused about doing it,” but analogized his demand for sex “as a penalty fee, like, [on a] Discover card.” Respondent told Ms. Wattigney that once she took care of her “business,” then “we’ll be square and I’ll be taking care of you again.” When Ms. Wattigney continued to Isprotest, respondent assured her that so long as she paid her fee installments on time each week thereafter, “this will never happen again, okay. But, if you miss, then that’s the punishment, that’s the late fee, that’s the whatever you want to call it, okay.” At the conclusion of the conversation on Friday, respondent instructed Ms. Wattigney to call him on Sunday night to make arrangements to “take care of business.”

Ms. Wattigney did not speak with respondent again until Monday, October 22, 2001, at which time the ODC’s investigator initiated and taped a third conversation between respondent and Ms. Wattigney. During this conversation, respondent withdrew his request that Ms. Wattigney have sex with him, suggesting there was “no sense aggravating everybody over this.”

Following the October 22, 2001 conversation, respondent had no further contact with Ms. Wattigney until November 29, 2001. On that date, at Ms. Wattigney’s request, respondent appeared in court when Ms. Wattigney entered a guilty plea in her criminal case. There is no evidence in the record that respondent and Ms. Wattigney had sexual relations during the 2001 representation, nor that they ever discussed the “sex as punishment” issue any further.

DISCIPLINARY PROCEEDINGS

The ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(a) (a lawyer’s fee shall be reasonable), 1.7(b) (a lawyer shall not represent a client if the representation may be materially limited by the lawyer’s own interests), 1.8 (prohibited transactions between a lawyer and a client), 2.1 (a lawyer shall exercise independent professional judgment in the representation of a client), 8.4(a) (violation Rof the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). In his answer to the formal charges, respondent denied that his actions violated the Rules of Professional Conduct; alternatively, respondent expressed remorse for his conduct. The matter then proceeded to a formal hearing on the merits.

At the hearing, the parties entered into stipulations and respondent admitted to the misconduct charged in the formal charges. The ODC called its staff investigator and Ms. Wattigney’s father to testify in person before the committee, and introduced the tapes and transcripts of the three telephone conversations between respondent and Ms. Wattigney. Respondent testified on his own behalf and called Ms. Wattigney to testify. In her testimony, Ms. Wattigney stated that she was satisfied with the representation respondent provided in both of her criminal cases. She also explained that she no longer wished to pursue a complaint against respondent, whom she described as “a great guy” and “a friend of mine.”

Hearing Committee Recommendation

Based on the evidence presented at the hearing, the committee made a finding of fact that an attorney-client relationship existed between respondent and Ms. Wattig-ney and that respondent attempted to coerce Ms. Wattigney to have sexual relations with him as a penalty for not paying legal fees to him on time. However, the committee determined that respondent subsequently dropped his demands for sexual relations with Ms. Wattigney. It also made a finding of fact that prior to the incident | .¡forming the basis of the instant charges, respondent had sexual relations with Ms. Wattigney on several occasions in exchange for financial assistance.

Based on these factual determinations, the committee concluded that respondent violated the Rules of Professional Conduct as charged in the formal charges. Specifically, the committee found that respondent violated Rule 1.5(a) by attempting to coerce sex from Ms. Wattigney as a late payment fee. Respondent violated Rules 1.7(b) and 1.8 by attempting to coerce Ms. Wattigney to have sexual relations with him during the legal representation, which created an inherent conflict of interest. Respondent failed to act as an independent advisor to his client, a violation of Rule 2.1, when he solicited Ms. Wattigney to have sex with him. Finally, respondent violated Rules 8.4(a), 8.4(c), and 8.4(d) by his attempt to have sexual relations with Ms. Wattigney. Respondent used his position as an attorney to improperly require his client to have sex with him, and he attempted to take advantage of his client for his own sexual gratification.

The committee determined that respondent violated duties to the legal system and the profession, but concluded that he primarily violated his duties to his client, Ms. Wattigney. Respondent’s conduct was clearly willful and intentional. Although respondent’s misconduct caused neither economic loss to Ms. Wattigney nor a loss of freedom, his conduct was emotionally troubling to Ms. Wattigney and to her family, and had the potential to cause serious injury to Ms. Wattigney. Relying on the ABA’s Standards for Imposing Lawyer Sanctions as well as this court’s opinions in In re: Ashy, 98-0662 (La.12/1/98), 721 So.2d 859, and In re: Gore, 99-3213 (La.1/28/00), 752 So.2d 853, the committee determined that the baseline sanction for respondent’s conduct is a two-year suspension from the practice of law.

IfiThe only aggravating factor recognized by the committee is respondent’s substantial experience in the practice of law (admitted 1976). The committee found the following mitigating factors are present: absence of a prior disciplinary record, remorse, and a cooperative attitude toward the proceedings. Finding the mitigating factors outweigh the lone aggravating factor, the committee concluded that deferral of at least half of the baseline sanction is warranted. Accordingly, the committee recommended that respondent be suspended for two years, with all but one year deferred, conditioned upon a two-year period of probation.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee. Respondent did not object to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board concurred in the hearing committee’s factual findings and application of the Rules of Professional Conduct. The board found that respondent intentionally violated duties owed to his client and as a professional when he attempted to coerce his client into a sexual act as a penalty for failing to pay a weekly installment on a legal fee. Respondent’s conduct did not cause tangible harm to the client, but resulted in emotional distress to her family.

The board found the record supports the aggravating factors of dishonest or selfish motive and substantial experience in the practice of law. In mitigation, the board recognized respondent’s remorse.

Turning to the issue of an appropriate sanction, the board examined the Ashy and Gore cases. The board observed that Ashy is factually similar to the instant matter. The respondent in Ashy made unwanted sexual advances to his client in 17exchange for his legal services on her behalf in an alleged drug matter. He also gave her $200 to buy lingerie and a dress to wear to his office. In exchange for an ongoing sexual relationship, Ashy promised his client that he would make a drug investigation involving her go away; however, Ashy knew that his client was not actually the subject of an investigation. Before a sexual encounter occurred, Ashy called off his demand for a sexual relationship. This court suspended Ashy for two years.

Gore involved a consent discipline stemming from a consensual sexual relationship. Gore was suspended for six months with two years of supervised probation for engaging in a consensual sexual relationship during his representation of a client in a divorce proceeding and for failing to advise his client of the potential conflict of interest. This court distinguished Gore’s conduct from Ashy’s conduct, noting that Gore involved consensual sex as opposed to coerced sex in Ashy.

Considering these cases, the board concluded that respondent’s conduct falls between that found in Ashy and in Gore. While respondent attempted to coerce Ms. Wattigney into a sexual relationship, he did not fabricate a story of a drug investigation like Ashy did. Nevertheless, the board felt that the gravity of respondent’s misconduct warranted his having to apply i$r reinstatement to the practice of law. Accordingly, the board recommended that respondent be suspended for two years and one day, with one year deferred.

One board member dissented, on the ground that the sanction recommended by the disciplinary board is too severe.

Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

^DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The instant case is unique because the conversations between respondent and Ms. Wattigney upon which the formal charges are based were tape recorded. These tapes were introduced into evidence and respondent stipulated to their authenticity. We have reviewed the tapes and other evidence in the record and conclude they demonstrate the ODC proved the formal charges against respondent by clear and convincing evidence. Accordingly, the sole issue presented for our consideration in this case is the appropriate sanction for respondent’s misconduct.

In considering that issue, we are mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and | smitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In determining the seriousness of respondent’s offense, we find it helpful to review the prior jurisprudence of this court involving similar misconduct. As the disciplinary board recognized, the facts of In re: Ashy, 98-0662 (La.12/1/98), 721 So.2d 859, and In re: Gore, 99-3213 (La. 1/28/00), 752 So.2d 853, present the closest similarities to the instant case.

In Ashy, the lawyer falsely advised his female client that she might be the subject of a criminal investigation. During a meeting with the client, the lawyer told her that she was “very attractive,” asked if she “minded” if he “hit on her,” and kissed her without her consent. At a later meeting, the lawyer told the client that he wanted to have a sexual relationship with her. He kissed her, touched her breast and buttocks, and placed her hand on his crotch. He also gave her some money to buy lingerie and a dress to wear to his office. He told the client that if she did not sleep with him he would do what he could to help her, but he couldn’t guarantee results; however, if she did sleep with him, “everything would disappear.” The client eventually learned that no warrant was going to be issued for her arrest and filed a complaint against respondent with the ODC.

We determined the lawyer’s conduct violated Rule 2.1, because his sexual overtures to his client threatened his ability to exercise independent professional judgment and render candid advice. Likewise, we identified a violation of the conflict of interest provisions in Rule 1.7(b), as the lawyer placed his own interests ahead of his client’s interests by refusing to put forth his best efforts unless the client responded to him sexually. After conducting a detailed analysis of Louisiana jurisprudence as well as the cases of our sister states, we noted that courts have imposed a wide range |inof discipline in similar cases of sexual misconduct, ranging from public reprimands to disbarment. We concluded the appropriate sanction for the lawyer’s misconduct in Ashy was a two-year suspension.

In Gore, the lawyer entered into a consensual sexual relationship with a female client whom he subsequently represented in a divorce proceeding. Although the client desired the divorce (which was uncontested by her husband) and consented to respondent’s representation, the lawyer admitted that he failed to discuss with his client the conflict of interest presented by their relationship. We accepted a petition for consent discipline and imposed a six-month suspension, followed by a two-year period of probation.

Although respondent’s misconduct is not identical to the misconduct at issue in either Ashy or Gore, those cases provide us with some guidance. As in Gore, respondent and Ms. Wattigney had a prior consensual sexual relationship, although this relationship had terminated by the time of the instant misconduct. As in Ashy, there is an element of coercion in respondent’s, implied threat that he might cease to represent Ms. Wattigney if she did not submit to the “sex as a penalty” arrangement; however, unlike Ashy, respondent never threatened to limit his efforts on his client’s behalf if she refused to engage in a sexual relationship with him. Indeed, respondent correctly points out he ultimately withdrew his request for sex and continued to represent Ms. Wattigney in her criminal case until it was concluded to her satisfaction.

Nonetheless, as we observed in Ashy, the particular evil that results from a lawyer’s sexual relationship with a client is the loss of emotional detachment which in turn threatens the objectivity and reasonableness that form the basis of the lawyer’s independent professional judgment. Ashy, 98-0662 at p. 15, 721 So.2d at 867 (quoting Annotations to Model Rule 2.1). The potential for harm which results ^whenever a lawyer allows his personal interests to conflict with his client’s interests is so great that any such violation must be viewed as being very serious, even if actual harm is not readily identifiable. The baseline sanction for this misconduct is a suspension from the practice of law.

As aggravating factors, we recognize respondent’s dishonest or selfish motive and substantial experience in the practice of law. In mitigation, we recognize the absence of a prior disciplinary record, respondent’s cooperative attitude toward the proceedings, and remorse.

Considering the facts of this case, we find the appropriate sanction for respondent’s misconduct is a two-year suspension from the practice of law. However, in light of the mitigating factors, we will defer all but one year and one day of the suspension. This will necessitate respondent’s application for reinstatement under Supreme Court Rule XIX, § 24 and thus permit this court to determine whether he has sufficient integrity to return to the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Robert T. DeFrancesch, Louisiana Bar Roll number 4802, be suspended from the practice of law in Louisiana for a period of two years, with all but one year and one day deferred. This suspension shall be retroactive to February 4, 2004, the date of respondent’s interim suspension. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

WEIMER, J., dissents and assigns reasons.

WEIMER, J.,

dissenting.

I agree the respondent should be sanctioned, but dissent regarding the severity of the sanction imposed by the majority.

In this matter, one day makes a difference because the respondent must re-apply for admission to the bar if the suspension exceeds one year. This makes the sanction too harsh. I cannot and do not condone his behavior which was wrong and unconscionable. The respondent has acknowledged this. However, the parties had engaged in consensual sexual relations previously. Additionally, the fact of the matter is the respondent called off this suggested encounter.

I suggest the respondent made a terrible error of judgment from which he withdrew before the suggested rendezvous occurred. Disciplinary board member, Billy R. Pesnell, dissented and assigned reasons, stating:

The facts found by the Hearing Committee, and affirmed by the Board, show that the Complainant agreed to have sexual relations with Respondent as a “late fee” or “penalty,” at Respondent’s suggestion, on |2October 19, 2001. Respondent’s suggestion (or demand) was voluntarily dropped by Respondent three days later on October 22, 2001, without any sexual relations having occurred. Thus, Respondent did not in fact use his position as attorney to coerce sex or money from Complainant. The evidence does not show that Respondent received an “unreasonable fee” in violation of Rule 1.5 or consummated a business transaction in violation of Rule 1.8.
Moreover, it is clear from the Board’s findings that Respondent and the Complainant had consensual sexual relations on several occasions before the attorney-client relationship on which the disciplinary charges are based was established. The Board, however, ignores that material in its analysis. It has been widely recognized that “... the principal danger of conflict in sexual relationships is pressure applied against a vulnerable client; that risk is plainly lower where the relationship is a preexisting one.” (Emphasis added.) Hazard & Hodes, 1 The Law of Lawyering, (3 ed.2003), § 11.18, Note 3, pp. 11-75. There was a pre-existing relationship here. In addition, the Hearing Committee expressly refused to find that the Complainant was vulnerable. The Board does not find that the Hearing Committee’s conclusion in this respect is manifestly erroneous.
Finally, neither the Hearing Committee or the Board has made any finding, nor is there any suggestion by ODC, that the quality of the professional services provided by Respondent in handling the Complainant’s case was impaired by the potential conflict or was sub-standard in any way. See People v. Zeilinger, 814 P.2d 808 (Colo.1991).... While Respondent’s suggestion that the Complainant should pay a “penalty” or “late fee” in the form of sex is undoubtedly reprehensible, it was not dishonest. Nor is there any proof that Respondent’s misconduct prejudiced the administration of justice in any way. There is no evidence that Respondent delayed the disposition of the case or threatened to limit his legal services in order to coerce Complainant’s consent to a sexual relationship. Consequently, I do not believe there is any basis for the Board’s conclusions that Respondent violated Rule 8.4(c) and Rule 8.4(d). Certainly, ODC has not established these alleged violations with clear and convincing clarity. [All emphasis . in original; internal footnotes omitted.]

Mr. Pesnell concluded that respondent’s primary rule violations involve rules 1.7(b) (conflict of interest) and 2.1 (independent advisor). These violations lasted for a total of four days from the day respondent first suggested sex as a late fee until the day he voluntarily dropped his demands. While the potential conflict and breach of fiduciary duty threatened harm to both the complainant and the legal system, there is Rno proof that any actual harm resulted from respondent’s overtures, outside of the emotional trauma and indignity suffered by the complainant.

Any trauma to the complainant in this case is mitigated by the fact the parties had previously had consensual sexual relations and by the fact she considered the respondent a “Mend” and wanted to drop the charges. When asked by the commission why she wanted to drop the charges, the complainant replied:

Well, the fact I’m, he’s a great guy, you know. We were Mends before. I don’t want this to happen to him. It’s his livelihood and, you know he’s a friend of mine. I was nervous and seared at the time. I just want to drop the charges because I feel like, you, it’s over with, what was said was said, and I wouldn’t want this to go further.

The punishment suggested by the Hearing Committee, which had the advantage of seeing the attorney and the complainant testify, would adequately serve the ends of justice. The committee found the following undisputed mitigating factors present: absence of a prior disciplinary record, remorse, and a cooperative attitude toward the proceedings. The committee recommended that respondent be suspended for two years with all but one year deferred, conditioned upon a two-year period of probation. I agree with the recommendation of the Hearing Committee.

      . Respondent and the ODC filed a joint motion for interim suspension pursuant to Supreme Court Rule XIX, § 19.3, based on respondent’s conduct in the instant case. We granted that motion on February 4, 2004. In re: DeFrancesch, 04-0245 (La.2/4/04), 865 So.2d 693.

      . The extent of the financial assistance is unclear. Respondent testified that he gave Ms. Wattigney a total of three or four hundred dollars during the relationship, in response to Ms. Wattigney’s requests for help paying her utilities and other living expenses. Ms. Wat-tigney, on the other hand, testified that respondent gave her several hundred dollars each time they had sex because "I was having problems with my boyfriend and I needed money, and he had it, so I just set a price and it was okay.”

      . The trial court sentenced Ms. Wattigney to serve two years in prison, suspended, and placed her on active probation for a period of two years.

      . Respondent asserts that in light of Ms. Wat-tigney’s testimony, the ODC should not have pursued the matter further. However, Supreme Court Rule XIX, § 18(H) plainly provides that "[njeither unwillingness nor neglect of the complainant to sign a complaint or prosecute a charge ... shall, in itself, justify abatement of the processing of any complaint.”

      . Respondent explained:
      The remorse is total and complete. Nothing — you can hurt me in ways that — you can punish me, punish me for what I did in other ways, but I really don't believe you all can punish me more than I’ve punished myself over the last years over the stupidity. There's no excuse for it.... I’m hoping after this is over I can tell Nicole how sorry
      I am too, that this ever happened. The remorse is totally complete.... Nothing like this has ever happened, it will never happen again, and it was a combination of circumstances that came together and I reacted totally inappropriately to those situations and circumstances, and I apologize to the committee and to the other members of the Bar for having you all here today.


author: |, PER CURIAM.

text:
    In re Michael H. O’KEEFE.
    No. 2003-B-3195.
    Supreme Court of Louisiana.
    July 2, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, Counsel for Applicant.
    Michael H. O’Keefe, New Orleans, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

|, PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael H. O’Keefe, an attorney licensed to practice law in Louisiana but currently on interim suspension.

PRIOR DISCIPLINARY HISTORY

Before we examine the current disciplinary charges, we find it helpful to review respondent’s prior disciplinary history.

Respondent was admitted to the practice of law in Louisiana in 1955. In 1983, respondent was convicted in the United States District Court for the Eastern District of Louisiana of one count of mail fraud and two counts of obstruction of justice arising from the sale of an apartment building. On December 22, 1983, respondent’s conviction was affirmed by the United States Court of Appeals for the Fifth Circuit. United States v. O’Keefe, 722 F.2d 1175 (5th Cir.1983).

Following the finality of his conviction, respondent filed a petition for consent discipline with this court, seeking to be disbarred. On December 7, 1984, in an unpublished order, we accepted respondent’s petition and ordered him disbarred, retroactive to December 22,1983.

j ¡.Thereafter, respondent applied for readmission. On April 7, 1989, we granted respondent’s application for readmission. In re: O’Keefe, 541 So.2d 843 (La.1989).

UNDERLYING FACTS

The Felony Conviction Matter

In early 1991, Physicians National Risk Retention Group (“PNRRG”), a Louisiana medical malpractice insurer, began to experience financial problems that ultimately resulted in its liquidation. Respondent operated the company that was retained to manage PNRRG during this period of time. As part of the liquidation, and under the pretext of arranging for continued malpractice insurance coverage to protect the physicians insured by PNRRG, respondent arranged to have more than $10 million in cash assets of PNRRG transferred to his law firm’s trust account. In fact, however, the insurance coverage was not maintained and claims were not paid for the insured physicians as promised. Instead, respondent and his cohorts diverted in excess of $7.5 million in assets of PNRRG to themselves personally and to companies they controlled.

In 1995, a federal grand jury returned a multi-count indictment charging respondent and others with conspiracy, mail and wire fraud, and money laundering in connection with the fraudulent insurance scheme. United States v. Michael O’Keefe, Sr., et at, No. 95-0106 on the Criminal Docket of the United States District Court for the Eastern District of Louisiana. On March 21, 1996, a jury found respondent guilty of conspiracy to commit mail fraud and wire fraud, a violation of 18 U.S.C. § 371 (as to Count 1); wire fraud, a violation of 18 U.S.C. §§ 1343 and 1341 (as to Counts 2, 4, and 5-8); and money laundering, a violation of 18 U.S.C. § 1956(a)(2)(A) (as to Counts 14-23).

|3On January 12, 1999, respondent was sentenced to serve 235 months in prison and was ordered to pay restitution to PNRRG in the amount of $1,174,849. On August 11, 2000, the United States Court of Appeals for the Fifth Circuit affirmed respondent’s conviction in an unpublished opinion. On June 11, 2001, the United States Supreme Court denied respondent’s petition for writ of certiorari; his conviction became final on August 6, 2001, upon the Supreme Court’s denial of rehearing in the matter.

The Solicitation Matter

The following recitation is based on the factual findings of the hearing committee, as well as the testimony and other evidence in the record.

Following respondent’s 1983 felony conviction and his readmission to the bar in 1989, respondent resumed the practice of law with the New Orleans law firm of O’Keefe, O’Keefe & Bernstein. By all indications, the firm enjoyed a successful practice concentrated primarily in the defense of insurance companies and the Housing Authority of New Orleans. However, by the mid-1990’s, the firm’s traditional practice base began to decline as political regimes in New Orleans changed and several insurance carriers doing business in Louisiana failed or relocated.

Meanwhile, over the years, certain unscrupulous attorneys in the greater New Orleans area had begun using persons known as “runners” to locate potential accident victims. The practice was largely conducted in the open and was carried out with | ¿little fear of consequence or reprisal. The runners, who often earned as much as $600 cash for each person brought to a lawyer’s office, spoke openly and publicly about their business. In time, this information came to be known by Ernest Aiavo-lasiti, who had previously worked as a legal assistant for a personal injury lawyer. Mr. Aiavolasiti realized that with his prior law firm experience, he could enter this business and thereby generate substantial income for himself, the runners, and the attorneys from whose office they operated.

Sometime in 1994, Mr. Aiavolasiti contacted his long-time friend, Michael Palmi-sano, about joining him in the plan. Mr. Aiavolasiti explained to Mr. Palmisano that in order to bring the plan to fruition, they would need to find a cooperating lawyer with start-up funds to pay the .runners as well as the legitimate costs of funding the personal injury cases. Mr. Palmisano agreed to contact respondent, who years earlier had loaned him money for a business venture, to see if he might be interested in participating in the plan.

Respondent agreed to meet with Mr. Aiavolasiti and Mr. Palmisano, and after the operations were explained, he decided to participate. According to testimony in the record, respondent agreed to provide the law office, funding for the payment of runners, and “case development costs,” as well as attorneys to try the cases that could not be settled. In exchange, respondent was to receive (through entities he owned or controlled) the legal fees generated from the settlement of the personal injury cases. Furthermore, loans and advances to clients were to be provided by finance companies owned or controlled by respondent, charging up to 36% interest and providing an additional source of cash flow to respondent. For their part, Mr. Aiavolasiti and Mr. Palmisano would work in the law office as salaried “legal assistants” and were promised a bonus from profits.

. | ^Respondent was apparently concerned about processing these new personal injury cases through O’Keefe, O’Keefe & Bernstein, as that firm was traditionally a defense firm. Accordingly, respondent approached Greer Goff, a young associate of the O’Keefe firm, about creating a separate law firm known as the “Law Offices of Greer Goff.” Respondent explained to Ms. Goff that Mr. Aiavolasiti and Mr. Palmisa-no were paralegals with “their own cases” to bring 'to her firm. Ms. Goffs role would be to try those cases that Mr. Aiavolasiti and Mr. Palmisano could not settle out of court. Ms. Goff did not question this explanation and agreed to do as respondent asked.

Mr. Aiavolasiti and Mr. Palmisano then began spreading the word to local runners that a new personal injury office was open for business. Slowly, but progressively faster, potential clients were brought by the runners to the third floor of the Canal Street building housing the O’Keefe, O’Keefe & Bernstein firm. After paying the runners in cash from funds provided to them by respondent, Mr. Aiavolasiti and Mr. Palmisano screened the cases and retained the clients on behalf of the “Law Offices of Greer Goff.”

Mr. Aiavolasiti and Mr. Palmisano referred the clients for medical treatment, negotiated settlements, and distributed the settlement funds to the clients. In the overwhelming number of cases, the clients never saw or spoke with Ms. Goff or any other lawyer; when questions arose in the course of the operation, Mr. Aiavolasiti and Mr. Palmisano directed them to respondent. The legal fees generated by the personal injury cases were paid to O’Keefe & O’Keefe, A.P.L.C., an entity owned by | (¡respondent, as well as to O’Keefe, O’Keefe & Bernstein, an entity owned almost entirely by O’Keefe & O’Keefe, A.P.L.C.

Subsequently, certain doctors in the New Orleans area began paying kickbacks in the form of “referral fees” to lawyers who agreed to send injured claimants to their offices for medical treatment. Mr. Aiavolasiti and Mr. Palmisano relayed that information to respondent, and pursuant to his instructions, they began referring some of their clients to Dr. Mark Schwaiger, a chiropractor willing to make such payments. Respondent kept two-thirds of the referral fees paid by Dr. Schwaiger for himself, while Mr. Aiavolasiti and Mr. Pal-misano split the remainder.

This arrangement continued for approximately two years. However, at some point, Ms. Goff began to realize that Mr. Aiavolasiti and Mr. Palmisano were not only working on “their own cases,” as originally contemplated, but were also acquiring new personal injury cases and using her name to do so. Ms. Goff confronted respondent, told him that she was no longer comfortable with the arrangement, and threatened to quit the firm. Respondent placated Ms. Goff for a period of time by promising to address her concerns, but the practice nevertheless continued. Eventually, Ms. Goff resigned from the firm. At about the same time, Mr. Aiavolasiti and Mr. Palmisano left respondent’s employ because the bonuses they had been promised had never materialized.

In April 1996, respondent approached his law partner, Stephen Bernstein, with a proposal that Mr. Bernstein create the “Law Offices of Stephen Bernstein” to serve j 7as a vehicle for continuing the lucrative runner-based operation. Mr. Bernstein agreed, and within a relatively short time, the new firm was bringing in between 180 and 220 new personal injury clients per month. While the cash flow generated by the personal injury business provided a source of funds to pay runners and “case development costs,” Mr. Bernstein still turned to respondent from time to time to provide capital for the operation. In turn, the legal fees generated by the personal injury cases were largely distributed to O’Keefe & O’Keefe, A.P.L.C. and O’Keefe, O’Keefe & Bernstein. The finance companies owned or controlled by respondent continued to provide funding for client advances, reaping 36% returns from clients. Finally, respondent maintained his “referral fee” relationship with Dr. Schwaiger, who met personally with respondent to discuss the arrangement and made those payments directly to him.

The scheme finally came to light in mid-1997, when the ODC commenced an in-depth investigation of the runner-based solicitation industry in New Orleans. As a result of this investigation, several disciplinary proceedings (and in some eases federal criminal proceedings) were instituted against the participants.

DISCIPLINARY PROCEEDINGS

Formal Charges

The ODC filed formal charges against respondent arising out of his felony conviction, alleging that his conduct constituted a violation of Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) |s(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

In the solicitation matter, the ODC alleged that respondent’s conduct violated Rules 5.5(b) (assisting a non-lawyer in the performance of an activity that constitutes the unauthorized practice of law), 7.2(a) (improper solicitation of professional employment by a lawyer or through others acting at his request or on his behalf), 7.2(d) (a lawyer shall not give anything of value to a person for recommending the lawyer’s services), 8.4(a), 8.4(b), and 8.4(c).

Recommendation of the Hearing Committee (Felony Conviction Matter)

Prior to a hearing on the formal charges, respondent filed a petition for consent discipline in which he sought the imposition of disbarment for his conviction. The ODC concurred in the petition, and the disciplinary board recommended the proposed discipline be accepted. However, on April 24, 2002, we rejected the petition for consent discipline and remanded the matter for consideration of the previously filed formal charges. Our order further instructed that on remand, “the hearing committee and disciplinary board may consider recommendation of the sanction of permanent disbarment, if appropriate, pursuant to Supreme Court Rule XIX, §§ 10(a) and 24, as amended effective August 1, 2001.” In re: O’Keefe, 01-1643 (La.4/24/02), 814 So.2d 1288.

By agreement of the parties, no formal hearing was conducted on remand and the matter was considered on documentary evidence alone. The hearing committee found the formal charges were proven by clear and convincing evidence and recommended that respondent be permanently disbarred.

_J^Recommendation of the Hearing Committee (Solicitation Matter)

After some delays related to discovery issues, this matter proceeded to a formal hearing on the merits, which was conducted by the hearing committee on May 20, 2002. The ODC submitted documentary evidence in support of the formal charges and called Ernest Aiavolasiti, Michael Pal-misano, Greer Goff, Stephen Bernstein, and Dr. Mark Schwaiger, among others, to testify before the committee. Respondent was incarcerated at the time of the hearing and thus did not appear in person. He elected not to retain counsel to represent him at the hearing and called no witnesses on his behalf. However, respondent submitted written questions which were posed to the ODC’s witnesses by the hearing committee chairman on cross-examination.

At the conclusion of the hearing, the committee found respondent violated Rule 7.2(a) by soliciting clients for his personal injury practice though the use of runners. The committee further found respondent violated Rule 7.2(d) by paying runners and other non-lawyers to obtain clients for his personal injury practice. Additionally, the committee found respondent violated Rule 5.5(b) by assisting Mr. Aiavolasiti and Mr. Palmisano in the unauthorized practice of law. The committee determined respondent violated Rule 8.4(a) by violating the Rules of Professional Conduct, both personally and through Mr. Bernstein. Finally, the committee found respondent committed a criminal act, and thus violated Rule 8.4(b), when he paid Mr. Aiavolasiti, Mr. Palmisano, and runners to procure cases for his firm.

The committee found respondent’s conduct violated duties owed to clients, to the legal system, and the profession. Given the extensive planning involved, respondent’s actions were clearly intentional. His actions resulted in actual and potential injury. It found hundreds of clients were deprived of the considered legal Imjudgment of an attorney during the course of their representation. The legal system and the profession suffer actual injury when a lawyer engages in runner-based solicitation, a felony under state law. Based on the ABA’s Standards for Imposing Lawyer Sanctions and the strong public policy expressed by this court in prior solicitation cases, the committee determined the baseline sanction for respondent’s misconduct is disbarment.

As aggravating factors, the committee recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law (admitted 1955). The committee found no mitigating factors are present. Under these circumstances, and considering the permanent disbarment guidelines set forth in Appendix E to the Rules for Lawyer Disciplinary Enforcement, the committee recommended that respondent be permanently disbarred.

Disciplinary Board Recommendation

Based on the documentary evidence in the record in the felony conviction matter, the board found this charge was proven by clear and convincing evidence. The board concluded that permanent disbarment is the appropriate sanction.

Likewise, the board found the record supports the committee’s factual findings in the solicitation matter. The board agreed that permanent disbarment is the appropriate sanction for this misconduct.

Respondent filed an objection to the disciplinary board’s recommendation in the solicitation matter only, conceding that permanent disbarment is appropriate in the|nfelony conviction matter. Accordingly, this case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a exime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent was convicted in federal court in 1996 on charges of bilking millions of dollars from a failed insurance company. The hearing committee and disciplinary board found, and respondent concedes, that permanent disbarment is a proper sanction for this conviction. We agree. Respondent has been convicted of a “serious crime,” as defined by Supreme Court Rule XIX, § 19, and that conviction ■ was preceded by x-espondent’s disbarment for a prior conviction of a serious exime. Permanent disbarment is therefore wholly appropriate under Guideline 9 of the permanent disbarment guidelines set forth in Appendix E to the Rules for Lawyer Disciplinary Enforcement.

Ordinarily, this finding would end our inquiry. Because the imposition of permanent disbarment is the most severe sanction that can be imposed on a lawyer, having the effect of forever removing the lawyer from the bar of this state, there is bogenerally no need to discuss any additional misconduct the lawyer may have committed. However, the ODC asks us to make a finding of the appropriate sanction for the solicitation charges, because this sanction could become relevant in the event respondent’s criminal conviction is reversed in post-conviction proceedings. Accordingly, we now address the solicitation matter.

Procedurally, respondent argues that he has been unable to defend the formal charges arising out of the runner-based solicitation scheme because he has not been given notice of the misconduct with which he is charged. We find no merit to this argument.

In In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), the United States Supreme Court held that a lawyer facing discipline is “entitled to procedural due process, which includes fair notice of the charge.” Likewise, Supreme Court Rule XIX, § 11(E) requires that formal charges of misconduct must “give fair and adequate notice of the nature of the alleged misconduct.”

A review of the ODC’s formal charges in the solicitation matter, as amended on July 13, 2001, reveals these charges contain a detailed factual statement of respondent’s activities in connection with the solicitation matter. The charges allege that respondent’s activities, either directly or through the individuals named in the formal charges, violated Rules 7.2(a), 7.2(d), 5.5(b), 8.4(b), 8.4(c), and 8.4(a). These charges unquestionably gave respondent fair and adequate notice of the nature of the professional violations alleged by the ODC.

Having found no merit to respondent’s procedural objections, we now consider whether the ODC met its burden of proving that respondent committed the misconduct alleged in the formal charges.

|13Pursuant to our original jurisdiction in bar disciplinary matters, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Having reviewed the voluminous record of these proceedings, we find no error in the hearing committee’s factual findings that respondent knowingly engaged in a scheme whereby he improperly solicited clients through paid runners and fostered the unauthorized practice of law by non-lawyers. The ODC presented testimony from key participants in the runner-based solicitation scheme. Without exception, these witnesses testified that respondent had a central role in the scheme. The hearing committee, which had the benefit of actually seeing and hearing these witnesses, found their testimony to be credible. Nothing in the record suggests that we should disregard that finding. See In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548 (“Although this court is the trier of fact in bar disciplinary cases, we are not prepared to disregard the credibility evaluations made by those committee members who were present during respondent’s testimony and who act as the eyes and ears of this court.”). The factual findings of the hearing committee support the conclusion that respondent violated the Rules of Professional Conduct as charged in the amended formal charges.

Having found professional misconduct, the next issue presented for our consideration is the appropriate sanction to be imposed. In considering that issue, we | uare mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

This court has long condemned the practice of soliciting clients for pay. In Louisiana State Bar Ass’n v. Beard, 374 So.2d 1179, 1181 (La.1979), we explained that solicitation of clients for pay cannot be condoned as “the professional character of the practice of law could not survive the hunting down and marketing of personal injury claims.” In Louisiana State Bar Ass’n v. St. Romain, 560 So.2d 820 (La.1990), we explained that “[s]olicitation is abhorrent to the legal profession and places lawyers in disrepute with the public.” See also In re: D’Amico, 94-3005 (La.2/28/96), 668 So.2d 730 (solicitation “undermines the reputation of lawyers generally and the public’s attitude toward the profession.”). The serious nature of this misconduct is further reflected in our specific reference to it in the permanent disbarment guidelines set forth in Appendix E to Supreme Court Rule XIX. Guideline 6 suggests permanent disbarment may be appropriate when the lawyer engages in “[ijnsurance fraud, including but not limited to staged accidents or widespread runner-based solicitation.” We have not hesitated to permanently disbar lawyers who knowingly participate in such activities. See In re: Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162; In re: Laudumiey & Mann, 03-0234 (La.6/27/03), 849 So.2d 515, cert. denied, — U.S.-, 124 S.Ct. 814, 157 L.Ed.2d 697 (2003).

| ^Unquestionably, respondent was at the epicenter of one of the largest runner-based solicitation schemes in Louisiana. Although respondent may not have originated the scheme, it is clear that it could not have existed without his funding and cooperation. Respondent’s attempts to insulate himself from culpability though the formation of sham law corporations serves only to aggravate the seriousness of his actions. Rather than using his experience as a senior member of the bar to foster the highest ideals of professionalism in the younger attorneys working under him, respondent used these attorneys as pawns in his scheme. In addition to the harm to the countless clients who were unknowingly drawn into his solicitation scheme, respondent’s activities caused grave harm to the entire legal profession in Louisiana.

It is particularly disturbing that in 1989, in connection with his application for readmission to the bar, respondent represented to us that he had reformed following his 1983 conviction and that he possessed the moral fitness to return to the practice of law. It is now painfully obvious to this court that those representations were hollow. Instead of learning from his prior discipline, respondent almost immediately began engaging in the improper activities which culminated in his second criminal conviction and the runner-based solicitation charges.

In summary, this record demonstrates beyond any doubt whatsoever that respondent lacks the good moral character and fitness to practice law in Louisiana. In the face of the indisputable evidence of such a fundamental lack of moral fitness, we can conceive of no circumstance under which we would ever grant readmission to respondent. Accordingly, we find respondent must be permanently disbarred for his felony conviction. Additionally, we find that his activities in the runner-based solicitation matter form a separate and independent ground for which he must also be permanently disbarred.

| ir,DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Michael H. O’Keefe, Louisiana Bar Roll number 9951, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked based on his felony conviction as well as his activities in the runner-based solicitation matter. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Following respondent's 1996 federal conviction, which forms the basis of a portion of the current charges, the ODC filed a motion for interim suspension pursuant to Supreme Court Rule XIX, § 19. We granted the motion on March 24, 1999. In re: O’Keefe, 99-0296 (La.3/24/99), 733 So.2d 1179.

      . Respondent, who for a number of years served as the president of the Louisiana State Senate, had minimal personal involvement in the law firm's practice. One of the witnesses described respondent’s function as more in the nature of an "of counsel” to the firm.

      . The practice was particularly prevalent along Canal Street in New Orleans; indeed, that part of the New Orleans legal community that engaged in the runner-based solicitation of personal injury clients became known as the "Canal Street Cartel.”

      . Over time, the volume of incoming cases grew to an average of 100 new personal injury cases per month.

      . In most of Ms. Goff’s cases, the sum of $700 was deducted from the total legal fee to recoup the money paid to the runners. This entry was noted on the internal firm disbursement sheet as an “investigation report.” The balance of the legal fee was then paid to O'Keefe & O'Keefe, A.P.L.C. and O’Keefe, O’Keefe & Bernstein.

      . Dr. Schwaiger testified that he obtained between 300 and 500 cases from respondent, and that the medical expenses in those cases averaged between $1,000 and $1,500 each. In turn, Dr. Schwaiger paid respondent $100 to $200 in cash for each case.

      . On January 29, 1999, we accepted a petition for consent discipline suspending Mr. Bernstein for three years, with one year deferred, for his role in the runner-based personal injury practice. In re: Bernstein, 98-3207 (La. 1/29/99), 725 So.2d 483. On January 28, 2003, we suspended Ms. Goff for nine months, with six months deferred, for her role in the practice. In re: Goff, 02-1899 (La. 1/28/03), 837 So.2d 1201. In addition, Mr. Bernstein, Mr. Aiavolasiti, Mr. Palmisano, and Dr. Schwaiger all entered guilty pleas in a federal investigation of the runner-based solicitation industry in New Orleans.

      . The committee pointed out that La. R.S. 37:219 makes it a felony for a lawyer to pay anything of value to another for purposes of securing clients.