author: | .PER CURIAM.

text:
    In re Ivan David WARNER, III.
    No. 2003-B-0486.
    Supreme Court of Louisiana.
    June 27, 2003.
    Rehearing Denied Sept. 5, 2003.

      Charles B. Plattsmier, G. Fred Ours, Baton Rouge, Counsel for Applicant.
    Ivan D. Warner, III, Bernard J. Bagert, Jr., 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, Ivan David Warner, III, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent represented Milton Victor in a personal injury claim stemming from a December 1996 automobile accident. On September 19, 1997, while the claim was still pending, Mr. Victor died of natural causes unrelated to his accident. Respondent was thereafter contacted by Mr. Victor’s daughter, Barbara Pierre, about settling the claim. On November 20, 1997, without having informed the defendant insurance company of Mr. Victor’s death, respondent settled the personal injury claim for $20,000. On December 5, 1997, respondent allowed Ms. Pierre to sign her father’s name on the release documents and on the settlement check. Respondent paid the net settlement proceeds to Ms. Pierre and did not determine whether Mr. Victor was survived by any children other than Ms. Pierre.

[..DISCIPLINARY PROCEEDINGS

Formal Charges

Ms. Pierre filed a complaint against respondent with the ODC. After an investigation, the ODC filed one count of formal charges against respondent, alleging his conduct violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.2(c) (counseling a client to engage, or assisting a client, in conduct the lawyer knows is criminal or fraudulent), 1.4 (failure to communicate with a client), 1.7 (conflict of interest), 1.8 (prohibited transactions between a lawyer and client), 1.15 (safekeeping property of clients or third persons), 1.16(a)(1) (declining or terminating a representation that will result in a violation of the Rules of Professional Conduct or other law), 4.1 (truthfulness in statements to others), 4.4 (respect for rights of third persons), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 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). Respondent answered the formal charges and denied any misconduct.

Formal Hearing

At the formal hearing, the ODC introduced documentary evidence in support of the formal charges, including (1) Mr. Victor’s death certificate, (2) various correspondence between respondent and the insurance adjuster, all dated in November 1997, relating to the settlement of Mr. Victor’s personal injury claim, and (3) copies of the release and settlement check signed by Ms. Pierre in her father’s name. The ODC also called Ms. Pierre to testify in person at the hearing, as well as Dean Thompson, an investigator employed by the ODC; Dawn Collins, a paralegal formerly 13employed by respondent; and Brian Tormey, the claim adjuster who handled Mr. Victor’s personal injury claim.

Ms. Pierre testified that when her father’s personal injury case settled, respondent told her to sign her father’s name on the release and on the settlement check. Ms. Pierre further testified that respondent did not explain the settlement documents to her, but simply said “let’s go ahead and do this [the settlement], because the people didn’t know that [Mr. Victor is] dead yet.” With respect to the issue of whether Mr. Victor was survived by any children other than Ms. Pierre, Ms. Pierre stated emphatically that she was the only child born of the marriage of her father and her mother. However, she also admitted that she is aware of other children who claim that Mr. Victor is their father, including one son who shares Mr. Victor’s first name:

A. That’s what they say. They say they got Milton, they got a whole pile of them, but they’re illegal. My Daddy stayed with women and they had children, and they call you Daddy, you know.
Q. Right, but they’re not born inside of a marriage?
A. (Shakes head negatively).
Q. They’re not legitimate?
A. He was only married to my Mom. Pm the only one that’s got his name.

Mr. Thompson testified that during the ODC’s investigation of this matter, he was asked to contact respondent to determine who signed Mr. Victor’s name on the release and on the settlement check. Respondent informed Mr. Thompson that Ms. Pierre signed her father’s name on the documents in his presence.

|4Ms. Collins’ signature appears on Mr. Victor’s release as a witness. However, she testified that she does not recall witnessing the release, nor does she recall whether Mr. Victor appeared before her to sign the document.

Mr. Tormey testified that respondent did not inform him of Mr. Victor’s death prior to the settlement of the personal injury claim, and that when he received the executed settlement documents from respondent, there was no indication in the documents that Mr. Victor had not been the person who signed them. Nevertheless, Mr. Tormey conceded that the claim would have been settled for $20,000 even if he had known of Mr. Victor’s death; however, he stated that he would likely have made the settlement check payable to Mr. Victor’s succession representative or to his estate.

Respondent presented various pieces of documentary evidence, including (1) a settlement statement signed by Ms. Pierre and dated December 12, 1997, (2) photocopies of the driver’s licenses of Mr. Victor and Ms. Pierre, and (3) a photocopy of Ms. Pierre’s birth certificate. Respondent testified in his own defense, and called three witnesses: Tulane Law School professor Cynthia Ann Samuel, retired Judge Jerome Winsberg, and Tracy Albright, respondent’s daughter and a paralegal employed by his law firm.

Professor Samuel was accepted as an expert in the Louisiana Civil Code and in succession matters in particular. She explained that in her view, Mr. Victor’s personal injury claim was governed after his death by the provisions of La. Civ.Code art. 2315.1, relating to survival actions. The highest category of claimant under that | .¡article is the decedent’s surviving spouse and/or children, who may or may not be the same as the decedent’s heirs or legatees. Professor Samuel opined that as Mr. Victor’s child, Ms. Pierre was the appropriate person to pursue his personal injury claim after his death, not the administrator of Mr. Victor’s succession. Based on this reasoning, Professor Samuel concluded that “the right person got the money under 2315.1.” On cross-examination, Professor Samuel agreed that art. 2315.1 makes no distinction between legitimate and illegitimate children; however, she clarified that an illegitimate child may have to prove his or her filiation to the decedent. She also conceded that children (whether legitimate or illegitimate) who are excluded from a personal injury settlement may continue to possess a claim against the tortfeasor. Finally, Professor Samuel agreed that upon Mr. Victor’s death, it would have been the “correct” and “official way of doing it” to substitute Ms. Pierre as a party in place of her father.

Judge Winsberg, who was accepted as an expert in the field of criminal law, also agreed that respondent’s handling of the settlement was “not totally savory and it’s not |fithe way to do it.” However, he opined that respondent did not commit a criminal act in connection with the settlement of Mr. Victor’s personal injury claim; in particular, respondent did not commit forgery. Judge Winsberg explained that forgery is the false making or altering, with the intent to defraud, of any signature to or any part of a writing purporting to have legal efficacy. According to Judge Winsberg, the critical factor with respect to this case is that respondent “never had an intent to defraud anyone, and if you look at the result of what ultimately happened, he gained no unjust advantage by doing what he did.”

Judge Winsberg also testified that in a legal sense, Mr. Victor’s death was not a material fact in this case, further detracting “from any type of criminality” of respondent’s conduct. According to Judge Winsberg, because the insurance company was going to pay the same amount of money whether Mr. Victor was alive or dead, the fact that he was dead at the time of the settlement was of no consequence. On cross-examination, it was pointed out to Judge Winsberg that at the time the settlement was consummated, respondent had no way of knowing whether, in fact, the 17insurance company would have settled for the same sum whether Mr. Victor was alive or dead. Judge Winsberg did not think that fact changed his opinion, however.

Ms. Albright testified that Ms. Pierre represented herself to the law firm as Mr. Victor’s only child. Ms. Albright recalled that after Mr. Victor died, Ms. Pierre brought in her birth certificate, a copy of her father’s death certificate, and a copy of her driver’s license to verify that she was, in fact, Barbara Pierre. Furthermore, Ms. Albright testified that respondent specifically asked Mr. Victor about his children during the initial client interview, and Mr. Victor informed respondent that he had one child, Ms. Pierre.

Finally, respondent took the stand to testify on his own behalf. Respondent assumed the representation of Mr. Victor from another lawyer in July 1997. During his initial meeting with Mr. Victor, respondent learned that Ms. Pierre was Mr. Victor’s only child. Ms. Pierre called respondent after her father died, and said she needed to settle his personal injury case because she had no money to bury her father. Respondent referred Ms. Pierre to Oceanside Finance Company, and he guaranteed a $1,400 loan out of the proceeds of any settlement. Respondent also asked Ms. Pierre to produce her birth certificate in order to establish that she was Mr. Victor’s daughter, and he asked her whether she was Mr. Victor’s only child. After satisfying himself that Ms. Pierre was the only person entitled to receive the proceeds of Mr. Victor’s settlement, respondent settled the claim. Respondent admitted that he did not inform the insurance adjuster handling the matter that Mr. Victor had died, but testified that he told Ms. Pierre “it’s time to settle the case” so that she would not incur additional expenses, including additional attorney’s fees, court costs, and increased finance charges on the money Ms. Pierre had borrowed from the finance company. Respondent further testified that he did not “enlarge” the claim beyond what it was Dworth — i.e., ten months of pain and suffering related to Mr. Victor’s soft tissue injury, valued at approximately $2,000 per month, for a total of $20,000.

On cross-examination, respondent stated that he thought it unnecessary to inform the insurance company of Mr. Victor’s death because he only settled the case “for the time period that he was alive.” However, respondent admitted the one-year prescriptive period was about to run on the claim, and had he mentioned his client’s death, the insurance company might have required “all kinds of things” that “didn’t matter,” like an affidavit “that there’s no illegitimate children.” Therefore, in order to avoid having to file a lawsuit, or open Mr. Victor’s succession (which he testified would have been “the long way”), respondent “took a short way of doing it” and simply settled the claim without telling the insurance company Mr. Victor had died. Respondent claimed to have had no fraudulent intent in doing so because the insurer “paid exactly what the file was worth, and it went to the right person.” Therefore, when he received the settlement check and release in Mr. Victor’s name, respondent told Ms. Pierre, “If you want to sign your father’s name, I think it’s okay to do so under these circumstances.”

Hearing Committee Recommendation

After reviewing the evidence presented at the hearing, the hearing committee made the following factual findings:

1. Mr. Victor died prior to the settlement of his personal injury claim, and his daughter Barbara Pierre forged his name to the settlement document and to the settlement check. Respondent either directed or participated in this forgery.
2. Respondent’s expert witnesses both believed that the timing of the settlement had something to do with the need to fund Mr. Victor’s burial; they both made specific mention of this issue on direct examination. However, the record is clear that Mr. Victor had been buried in September, at least two months prior to the settlement.
|n3. Respondent had much to gain by settling the case at the time and in the fashion that he did. The claim was very .close to prescription. Even though the insurance adjuster testified that had he known of Mr. Victor’s death, the amount of the settlement would not have changed, there is no way to know if the documents necessary to settle the matter in such a way that they properly reflected that Mr. Victor had died, could have been confected within the remaining week left before the claim tolled.
4.The more time respondent was required to spend on the case, the less he would profit from any settlement. Respondent testified that one of the reasons to settle at that particular time was that his fee was increased under his contract if suit had been filed on the claim, from 1/3 to 40%. But once that was done, and the insurance company hired a lawyer to defend the claim, there was no assurance that it would settle at all, and respondent certainly knew that as well.
5. Judge Winsberg testified that there was no forgery because there was no intent to defraud nor advantage to be gained. This, however, ignores the fact of the time value of money, and the uncertainty of litigation had the settlement not occurred when it did.
6. Further, there is the still-unresolved issue of the possibility of other heirs. The evidence if there are any such heirs or not is entirely unclear. [Whether] the possibility of other heirs would have affected or delayed the insurance company’s decision to settle is also unclear.

Based on these factual findings, the committee concluded that respondent violated Rule 1.2(c) by directing, counseling, or assisting Ms. Pierre in forging her father’s name on the settlement documents; violated Rule 1.7 in light of the conflict of interest between respondent and Ms. Pierre as to the timing of the settlement, and in light of the potential for a conflict of interest if there had been heirs other than Ms. Pierre; violated Rule 4.1 by failing to disclose Mr. Victor’s death to the insurance company; and violated Rule 8.4 by violating the Rules of Professional Conduct as discussed. The committee made no findings as to the other rule violations alleged in the formal charges.

Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction for respondent’s misconduct is a suspension. In aggravation, the committee recognized respondent’s prior disciplinary |inoffenses, dishonest motive, and substantial experience in the practice of law (admitted 1972). The committee did not find any mitigating factors are present. Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

The disciplinary board found the hearing committee’s findings of fact are not manifestly erroneous. Specifically, the board agreed that Ms. Pierre’s actions constituted a forgery, and that respondent’s participation in that conduct rose to the level of fraud. After considering the definition of forgery set forth in La. R.S. 14:72, the board found it is evident that Ms. Pierre’s efforts in signing her deceased father’s name on the release and on the settlement check — writings that have legal efficacy— gave the false appearance that Mr. Victor had done so. The board also found that respondent directed Ms. Pierre to commit the forgery with the specific intent to defraud the insurance company. La. Civ. Code art.1953 defines fraud as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” Respondent misrepresented to the insurance company that the signature on the settlement documents was that of Mr. Victor, and he suppressed the truth by failing to inform the insurance company that Mr. Victor had died. As a result of these actions, the board found that respon-dentjjjobtained an unjust advantage in his settlement negotiations with the insurance company.

Turning to the remaining question of whether, by his actions, respondent intended to obtain such an unjust advantage, the board concluded that respondent did so. Respondent acknowledged in his testimony before the committee that the settlement might not have been as readily perfected if the insurance company had been informed of Mr. Victor’s death. Additionally, respondent noted that the prescriptive date was nearing and that Ms. Pierre was reluctant to pay the costs associated with the filing of a lawsuit. The board observed that it was in this environment that respondent made the conscious decision not to inform the insurance company of Mr. Victor’s death and to have Ms. Pierre sign her father’s name on the settlement documents. Respondent knew these actions would expedite the settling of the personal injury claim and avoid the possibility of protracted litigation. Respondent also knew these actions would deprive the insurance company of the ability to make a fully informed decision, and afford him an unjust advantage in the settlement negotiations relating to Mr. Victor’s personal injury claim. Based on this reasoning, the board found the hearing committee’s factual findings are supported by the record in all aspects.

Upon its review of the record, the board concluded respondent violated Rule 1.2(c) by counseling Ms. Pierre to sign her deceased father’s name to the settlement documents. It found respondent’s motive for doing so was to avoid protracted litigation which could impact his fee, creating a conflict of interest between respondent and his client for purposes of Rule 1.7. The board also recognized a violation of Rule 4.1 based on respondent’s failure to disclose Mr. Victor’s death to the insurance company and his misrepresentation that Mr. Victor signed the settlement documents. Finally, the board concluded respondent violated Rule 8.4 by engaging in conduct |12involving dishonesty, fraud, or misrepresentation. The board determined the remaining charges were not proven by clear and convincing evidence.

The board found that respondent knowingly and intentionally violated duties owed to his client, the public, the legal system, and the profession. The board noted Ms. Pierre was harmed by respondent’s counseling her to commit an act with possible criminal consequences and by his failure to put aside his own interests in avoiding protracted litigation. The public and the legal profession were harmed by respondent’s failure to maintain personal honesty and integrity. Such violations tend to lessen public confidence in the legal profession and to encourage disrespect for the law. Finally, the legal system was harmed by respondent’s fraudulent actions directed at circumventing the normal legal process. Respondent withheld material information from the insurer during the settlement negotiations relating to Mr. Victor’s personal injury claim. As a result, the insurer was denied the opportunity to make an independent evaluation of the impact of Mr. Victor’s death upon the pending claim.

The board adopted the aggravating factors cited by the hearing committee, and agreed that the record does not support the presence of any mitigating factors. Considering the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence of this court dealing with similar misconduct, the board found the suspension recommended by the hearing committee is appropriate. Accordingly, the |13board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

Respondent filed an objection in this court 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. Y, § 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 the ODC has charged various professional violations, the crux of this matter is whether respondent acted with fraudulent intent when he directed, counseled, or assisted Ms. Pierre in signing her deceased father’s name on the release and on the settlement check. Respondent maintains no forgery occurred because he had no intent to defraud when he directed or assisted Ms. Pierre in signing her father’s name on the settlement documents. However, the hearing committee, which had the advantage of seeing and hearing the witnesses, made a finding of fact that respondent’s primary B ¿motive in directing or assisting Ms. Pierre in signing Mr. Victor’s name on the documents was to avoid jeopardizing the settlement of the personal injury claim, which could have adversely affected respondent’s fee.

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. In re: Gaines, 02-2454 (La.2/25/03), 838 So.2d 1278; In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548. Therefore, we cannot say the hearing committee was clearly wrong when it determined that respondent’s actions were motivated by an intent to defraud. This finding in turn supports the legal conclusion that respondent violated Rules 1.2(c) (counseling a client to engage, or assisting a client, in conduct the lawyer knows is criminal or fraudulent), 1.7 (engaging in a conflict of interest), 4.1 (truthfulness in statements to others), 4.4 (respect for rights of third persons), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 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).

Having found violations of the Rules of Professional Conduct, we now turn to a determination of an appropriate sanction for this misconduct. The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La.1981). 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. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent maintains that because Ms. Pierre was Mr. Victor’s sole legitimate heir, his misconduct is not serious and no significant harm resulted from his actions. We disagree. Respondent’s conscious decision not to inform the insurance company of Mr. Victor’s death deprived it of the ability to make a fully informed decision regarding the settlement of the personal injury claim. Respondent made only minimal efforts to determine whether Mr. Victor was survived by heirs other than Ms. Pierre. By not following the proper procedures (such as opening Mr. Victor’s succession or obtaining an affidavit of death and heirship), respondent could have deprived potential heirs of their share of the settlement. Additionally, he exposed Ms. Pierre to the possibility of criminal prosecution for forgery.

The ODC properly characterizes respondent’s actions in this case as an example of “corner-cutting,” a theme which runs throughout respondent’s disciplinary history. His conduct in the instant matter is particularly troubling, because respondent admitted he knew his actions were improper, but that he “took a short way of doing it.” Such behavior by a member of the bar of this state is simply unacceptable. The citizens of Louisiana look to attorneys for accurate and competent legal advice. By giving Ms. Pierre advice he knew was improper, respondent’s conduct fell far below the professional standards this court expects and requires from an experienced attorney such as respondent. The baseline sanction for respondent’s misconduct is a suspension from the practice of law.

h Jn aggravation, we place strong emphasis on respondent’s prior disciplinary record for similar misconduct. We also recognize his dishonest motive and substantial experience of over thirty years in the legal profession. We are unable to discern any mitigating factors from the record.

Considering these circumstances, we conclude the appropriate sanction for respondent’s misconduct is a suspension from the practice of law for a period of one year and one day, which will necessitate an application for reinstatement.

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 Ivan David Warner, III, Louisiana Bar Roll number 13247, be suspended from the practice of law in Louisiana for a period of one year and one day. 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.

      . Attorney’s fees, costs, client advances, and the decedent’s funeral expenses were deducted from the gross settlement to arrive at a net settlement of $3,277.23.

      . In fact, though Ms. Pierre was Mr. Victor’s only legitimate child, Mr. Victor may have been survived by at least one illegitimate child.

      . Ms. Pierre testified that no witnesses were present for the signing, although we note that the signatures of two witnesses appear on the release, as does respondent’s.

      . La. Civ.Code art. 2315.1 provides in pertinent part as follows:
      A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
      (2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
      (3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
      (4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
      B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.
      C.The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

      . The crime of forgery is defined by La. R.S. 14:72, which provides in pertinent part as follows:
      A. It shall be unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficaCy'
      * *
      C. For purposes of this Section:
      (1) "Forge” means the following:
      (a) To alter, make, complete, execute, or authenticate any writing so that it purports:
      (i) To be the act of another who did not authorize that act;
      (ii) To have been executed at a time or place or in a numbered sequence other than was in fact the case; or
      (iii) To be a copy of an original when no such original existed.

      . Respondent’s prior misconduct is strikingly similar to that at issue in the instant case. He was admonished by the disciplinary board in 1996 (96-ADB-045) for depositing settlement checks without obtaining all of the necessary endorsements. He has also been publicly reprimanded by this court for his participation in a real estate scheme. Louisiana State Bar Ass’n v. Warner, 576 So.2d 14 (La.1991).

      . The board considered In re: Wahlder, 98-2742 (La.1/15/99), 728 So.2d 837, and In re: Stephens, 94-1924 (La.11/18/94), 645 So.2d 1133. In Wahlder, this court imposed a fully deferred six-month suspension, subject to a one-year period of supervised probation with conditions, upon an attorney who directed an employee to notarize the signature of a client's wife, despite her absence at the time the documents were notarized. Wahlder also improperly acted as a "witness” to the signature of the wife. Additionally, he failed to notify the trial court and opposing counsel of this discrepancy when the couple subsequently divorced and he discovered that the husband had signed the documents on his wife’s behalf without her knowledge. In Stephens, this court imposed an eighteen-month suspension upon an attorney who notarized a forged affidavit before filing it into the court record. The board noted that more rule violations and aggravating factors are present here than in Wahlder; however, respondent's misconduct here does not rise to the level of that seen in Stephens, which involved several additional rule violations and the submission of false evidence to a tribunal.

      . Pretermitting the merits, respondent also raised a procedural objection to the disciplinary board's recommendation. He argued that Wanda Davis, a member of the board, should not have participated in the board’s decision, because prior to her appointment to the board she served as the chair of the hearing committee which heard this matter. We agree Ms. Davis should have refrained from talcing part in the board's consideration of this matter. However, any error in this regard is harmless. The remaining seven members of the board constitute a quorum under Supreme Court Rule XIX, § 2(D), and those seven members unanimously concurred in the recommendation. Accordingly, the disciplinary board’s recommendation remains the same even after Ms. Davis’ vote is discounted.

      . In addition, the record supports a finding that respondent engaged in deceptive practices during the ODC’s investigation of Ms. Pierre’s complaint. Specifically, respondent altered a copy of the release signed by Ms. Pierre in her father’s name by placing the initials "BP” on the release in such a way as to suggest that Ms. Pierre had indicated she were signing for her father. This conduct was properly considered in aggravation of the underlying misconduct. See Standard 9.22(f) of the ABA's Standards for Imposing Lawyer Sanctions.


source: Caselaw Access Project

author:
CALOGERO, Chief Justice.
      11 JOHNSON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Jeremy SIMS.
    No. 2002-K-2208.
    Supreme Court of Louisiana.
    June 27, 2003.
    Rehearing Denied Sept. 5, 2003.

      Hon. Richard P. Ieyoub, Attorney General, Hon. Eddie J. Jordan, Jr., District Attorney, Anne M. Dickerson, Julie C. Tiz-zard, Valentin M. Solino, Counsel for Applicant.
    Laura M. Pavy, Opelousas, Counsel for Respondent.
   CALOGERO, Chief Justice.

Police officers conducted an investigatory stop-and-frisk of defendant to determine whether he was a minor on the streets at night in violation of a curfew ordinance. As he was being frisked, defendant became frightened and, in an effort to escape, struck one of the officers. Defendant was thereupon arrested for battery on a police officer. In a search incident to that arrest, the officers discovered several rocks of cocaine inside of a cigarette pack in defendant’s pocket. The district court denied defendant’s motion to suppress the evidence and convicted defendant of possession of cocaine. The court of appeal reversed the conviction on the ground that the frisk of defendant was unlawful and, under the long-standing Louisiana rule, defendant had the right to resist an unlawful arrest.

We reverse the judgment of the court of appeal. Although we agree that the officers lacked reasonable suspicion to conduct a protective frisk of defendant, we hold that the officers lawfully arrested defendant for battery on a police officer because an individual has no right to resist an unlawful stop-and-frisk.

FACTS AND PROCEDURAL HISTORY

On the evening of April 30, 2001, two New Orleans police officers, Officer Jayson Germann and Officer Alan Arcana, were patrolling an area of eastern New Orleans that had been documented for an increase in residence burglaries. Officer 1 ¡.Germann testified that he believed “juveniles were breaking into the residences” because of “narcotic activity in the area.” While on patrol, the officers observed defendant, Jeremy Sims, walking on Avalon Street. As the officers approached, defendant turned and looked at them. Officer Germann testified that defendant was acting nervously, and that he became more nervous as the officers drove closer to him. The officers believed defendant was possibly a curfew violator because he seemed to be very young. At this point, the officers decided to stop defendant and investigate the possible curfew violation.

After securing defendant’s identification, Officer Germann realized that defendant was not a juvenile. However, even after his age was discovered, Officer Germann testified, defendant became even more nervous. To ensure the officers’ safety, he decided to conduct a protective frisk for weapons. As Officer Germann began the pat down for weapons, he felt what he believed to be a pack of cigarettes. At this time defendant became frightened and, in an effort to get away, swung his elbow around and struck the officer in the chest. As the two struggled, Officer Arcana got out of the police vehicle and assisted his partner. A brief struggle ensued before defendant complied with the officers’ orders to stop resisting. The two officers then arrested defendant for battery on a police officer, a violation of La.Rev.Stat. 14:34.2. In a search incident to the arrest, Officer German removed the cigarette pack from defendant’s pocket and found that it contained several rocks of cocaine.

Defendant pled not guilty to the charge of possession of cocaine and filed a motion to suppress the evidence. At the hearing, defense counsel argued only that the decision to conduct an investigatory stop on the basis of a possible curfew violation alone is too subjective. The district judge denied the motion to suppress, finding that lathe officers did not abuse their discretion when they decided to stop defendant to investigate a possible curfew violation because, based on the officers’ experience, defendant seemed very young. Defendant then withdrew his plea of not guilty and pled guilty as charged, reserving his right to appeal the adverse ruling on his motion to suppress. The district court judge sentenced defendant to five years at hard labor, suspended, and placed defendant on active probation for five years.

The court of appeal reversed defendant’s conviction and sentence. State v. Sims, 02-0479, p. 7 (La.App. 4th Cir.7/17/02), 823 So.2d 1013, 1018. Although, the court of appeal reasoned, the officers had sufficient basis to conduct an investigatory stop of defendant based on the lateness of the hour and defendant’s youthful appearance, the facts were insufficient to establish the officers’ right to conduct a frisk of defendant’s outer clothing for weapons. Recognizing that to conduct a protective frisk in conjunction with an investigatory stop, police officers must provide articula-ble facts that create a reasonable suspicion that danger existed, the court noted that Officer Germann’s own testimony established that he did not suspect defendant of any crime other than a curfew violation. The only reason Officer Germann gave to justify his belief that defendant was armed was that defendant remained nervous even after he satisfied the officers that he was not a juvenile.

The court of appeal found that the testimony did not reflect anything more than the officers’ “inchoate and unparticularized suspicion or ‘hunch’ that the defendant was armed.” Id. The court, therefore, held that the officers’ frisk of defendant was ^unlawful, and, furthermore, the officers had no right to arrest defendant for battery on a police officer because a defendant in Louisiana has the right to resist an unlawful arrest. Citing State v. Lindsay, 388 So.2d 781 (La.1980), and City of New Orleans v. Lyons, 342 So.2d 196 (La.1977).

We granted the state’s application to examine whether the officers’ stop and subsequent protective frisk of defendant were lawful where defendant continued to display nervousness in his interaction with the officers, even after it was established that he was not a curfew violator. Equally important, however, we granted the writ application to examine the long-standing law of this state that an individual has the right to resist forcefully an unlawful arrest, and to examine that law’s applicability to this case. We find that the court of appeal erroneously overturned defendant’s conviction and sentence. Although the police officers did not possess reasonable suspicion of danger to justify the protective frisk of defendant, defendant did not have the corresponding right to resist this unlawful frisk forcefully by committing a battery on the investigating officer. In other words, we hold today that the statutory and jurisprudential right to resist an unlawful arrest does not grant an individual a similar right to resist an unlawful stop- and-frisk.

LAW AND ANALYSIS

As a preliminary matter, we agree with the court of appeal that the officers had the right to detain defendant to determine whether he was a curfew violator. While an arrest requires officers to have probable cause to believe that a suspect has committed a crime, see U.S. Const, amend. IV and La. Const, art. I, § 5, an investigatory stop requires a lesser standard of “reasonable suspicion.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Louisiana, the investigatory “Terry ” stop is codified in La. Code Crim. Proc. art. 215.1(A): “A law enforcement officer may stop |Ka person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” Like an arrest, an investigatory stop entails a complete restriction of movement, although for a shorter p.eriod of time. State v. Bailey, 410 So.2d 1123, 1125 (La.1982).

In making a brief investigatory stop, the police “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Specifically, our courts have interpreted article 215.1 to require that an officer point to specific and articulable facts to justify an investigatory stop. State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049.

In this case, the officers were patrolling an area that had recently seen an increased amount of residence burglaries, which, the officers suspected, were being committed in large part by juveniles. At the time the officers observed defendant, it was past curfew, and, according to the officers, defendant looked very young. Because defendant was only eighteen years old at the time of the stop, the officers’ suspicion regarding a possible curfew violation was not unreasonable. Additionally, Officer Germann stated that defendant became nervous when he saw the police officers. See State v. Williams, 421 So.2d 874 (La.1982) (While nervousness or startled behavior at the sight of a police officer is not in and of itself enough to constitute reasonable suspicion, it is a factor to consider.). The officers therefore articulated the specific facts that, based on their experience, led them to conclude defendant could possibly be a curfew violator. Consequently, the investigatory stop was lawful under article 215.1.

| ¡^Although the initial investigatory stop of defendant was proper, we cannot say that Officer Germann was justified in conducting a protective frisk of defendant. An officer’s right to conduct a protective frisk is codified in La.Code Crim. Proc. art. 215.1(B), which provides that “[w]hen a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.” While it is true that an officer is never justified in conducting a pat-down for weapons unless the original investigatory stop itself was justified, a lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. State v. Hunter, 375 So.2d 99, 101 (La.1979). Even after a lawful investigatory, stop, a police officer may frisk the suspect only where a reasonably prudent person would be warranted in the belief that his safety or that of others is in danger. La.Code Crim. Proc. art. 215.1(B); Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Therefore, the reasonableness of a frisk is governed by an objective standard. State v. Dumas, 00-0862, pp. 2-3 (La.5/04/01), 786 So.2d 80, 81.

The officer’s suspicion that he is in danger is not reasonable unless the officer can point to particular facts which led him to believe that the individual was armed and dangerous. Hunter, 375 So.2d at 101. The officer need not establish that it was more probable than not that the detained individual was armed and dangerous. Rather, it is sufficient that the officer establish a “substantial possibility” of danger. Id. at 102. In determining the lawfulness of an officer’s frisk of a suspect, courts must give due weight, not to an officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

Officer Germann testified as follows concerning his decision to frisk defendant:

170riginally, like I said, when we stopped him and learned he was nervous, we come across a lot of people who are nervous when they’re stopped by the police and this is the natural behavior, and sometimes — you know, like I said, I believed he was nervous because of the fact that he — I thought he was a juvenile and he didn’t want to go to the curfew center but once I realized he wasn’t a juvenile and he was still nervous and I couldn’t understand why he was so nervous, I went ahead and conducted a pat down for officer’s safety to ensure that me and my partner weren’t gonna [sic] get injured in any sort of way.

Officer Germann’s own testimony establishes that the officers did not suspect defendant of any crime other than a curfew violation, a non-violent offense. The only reason Officer Germann gave for his belief that defendant might be armed and dangerous was that defendant continued to display nervousness after the officers ascertained that he was not in violation of the curfew ordinance. No court of this state has concluded that nervousness, absent additional aggravating factors, can form the basis for an officer’s protective frisk search for weapons.

For example, in Hunter, 375 So.2d at 101, officers encountered the defendant alone in the rear of an automobile parked in a residential neighborhood. Although there was reason to suspect the defendant of illegally entering the automobile, there was no indication that he was or had been involved in the commission of a violent crime. Id. This court noted that there were no bulges in the defendant’s clothing or other signs that he was armed, and, although he was nervous, he made no movement which could reasonably have been interpreted as an effort to produce a weapon. Id. While the defendant patted the breast pocket of his coat (which could arguably be construed as an attempt to reach a weapon), the officer who conducted the frisk did not indicate that this action precipitated the frisk. M This court found that the officers failed to | «articulate any particular facts from which it could be reasonably inferred that the defendant was armed and dangerous; therefore, we found the protective frisk of the defendant in Hunter to be unlawful.

Additionally, in State v. Purvis, 96-787 (La.App. 3d Cir.12/11/96), 684 So.2d 567, officers decided to conduct a frisk of the defendant’s companion because he was “highly nervous,” sweating, and staring at them. Id. at 571. The court suppressed the contraband discovered during the frisk, reasoning that the officers failed to articulate facts other than the companion’s nervous behavior to support the reasonable suspicion that he was engaged in criminal activity. Id. (citing State v. Cor- mier, 94-537 (La.App. 3d Cir.11/2/94), 649 So.2d 528).

In this case, although the neighborhood in which Officers Germann and Arcana encountered defendant had seen an increase in residence burglaries, any high crime character of the area was not a factor Officer Germann cited to support his belief that defendant could have been armed and dangerous. Rather, defendant’s continued nervousness was the sole reason Officer Germann decided to conduct a frisk for weapons. The officer himself testified, however, that nervousness is a natural reaction of a citizen stopped by the police. As the court of appeal below correctly held, the law requires more. Whether Officer Germann subjectively believed that he was in danger is irrelevant because we are not prepared to find that this belief was reasonable. See Dumas, 00-862, pp. 2-3, 786 So.2d at 82. The officers in this case did not see a bulge in defendant’s clothing indicating a weapon; defendant did not make any furtive gestures or place his hands in his pockets. The officers did not state that defendant appeared to be under the influence of alcohol or drugs, and defendant did not attempt to elude the officers at any time before the stop-and-frisk.

Courts must give deference to the training and experience of police officers in | ndetermining which suspects might prove to be a danger to themselves or others. However, allowing police officers to conduct a protective frisk based on anything less than specific and articulable facts illustrating their reasonable belief that danger existed “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Officer Germann’s testimony established that he had no more than a “hunch” that defendant could have been armed, based on the fact that defendant remained nervous. In fact, given that in Officer Germann’s experience defendant’s nervous behavior was essentially normal, officers would be justified in patting down nearly every individual stopped on the basis of a nervous disposition. Accordingly, the court of appeal correctly held that the protective frisk of defendant was an unlawful search in violation of the Fourth Amendment.

The court of appeal’s conclusion is meaningless, however, unless defendant’s resistance to the improper frisk was justified under Louisiana’s well-established doctrine that an individual may lawfully resist an unlawful arrest. See, e.g., City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781, 784 (1943). This long-standing common law rule is reflected in both the Louisiana Criminal Code and the Louisiana Code of Criminal Procedure. While a person “shall submit peacefully to a lawful arrest” pursuant to La.Code Crim. Proc. art. 220, if no probable cause exists for an arrest, an individual has the right to use “such force as is necessary” to resist an unlawful arrest. Ducas, 14 So.2d at 784; State v. Lindsay, 888 So.2d 781, 782 (La.1980); City of Monroe v. Goldston, 95-0315, p. 4 (La.9/29/95), 661 So.2d 428, 430.

|1ftAlthough at one time most states adhered to the rule that a private citizen has the right to resist an unlawful arrest, the modern trend has been to limit the privilege. State v. Wiegmann, 350 Md. 585, 714 A.2d 841, 849 (1998). For example, this court has refused to extend the doctrine to an individual resisting an arrest for violation of a law that is subsequently declared unconstitutional. See Lyons, 342 So.2d at 200. Nonetheless, as this court noted in White v. Morris, 345 So.2d 461, 466 (La.1977), attempts made in the legislature in 1969 and 1975 to abolish the right to resist an unlawful arrest proved unsuccessful. Although the doctrine continues to be a part of Louisiana law, no court of this state has addressed its applicability to an unlawful investigatory stop and subsequent “pat down” for weapons.

To begin, La.Rev.Stat. 14:108 and La. Code Crim. Proc. art. 220 make it a crime to resist lawful arrests only, and do not address temporary detentions. The legislature enacted La.Rev.Stat. 14:108 and La. Code Crim. Proc. art. 220 before the Supreme Court in Terry v. Ohio upheld the constitutionality of the temporary stop and protective frisk, and, consequently, before Louisiana enacted its own stop-and-frisk statute, La.Code Crim. Proc. art. 215.1, in 1968. Therefore, in addition to being absent from the text of the pertinent statutes, the right to resist a temporary stop- and-frisk could not have been envisioned by the legislature when it imposed on the citizens of this state the duty to submit peacefully to lawful arrest.

As we stated previously, the temporary stop-and-frisk under article 215.1 is similar to an arrest, as it entails a complete restriction of a defendant’s movement. Bailey, 410 So.2d at 1125 (La.1982). The stop-and-frisk differs from a full-blown arrest, however, in many crucial respects, and it is these differences which prompt our Inholding that an individual does not have the right to resist an unlawful stop-and-frisk. A stop-and-frisk conducted pursuant to article 215.1 is a lesser intrusion on one’s personal liberty than an arrest. “An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows.” Terry, 392 U.S. at 26, 88 S.Ct. at 1882. Compared to an arrest, a stop-and-frisk is a relatively brief encounter with police officers. See State v. Young, 02-1073, p. 5 (La.App. 4th Cir.6/4/02), 820 So.2d 1182, 1186. Additionally, unlike the thorough and intrusive search conducted incident to an actual arrest, the Terry frisk is limited to a more superficial pat-down of a suspect’s outer clothing for the purpose of detecting weapons only. See La.Rev.Stat. 215.1. While police and court records permanently document the event of an arrest, a stop-and-frisk is an informal encounter that is generally not the subject of any public record. Virginia v. Hill, 264 Va. 541, 570 S.E.2d 805, 808 (2002).

Perhaps most importantly, the sole purpose of the limited protective frisk is to prevent harm to police officers. State v. Wade, 390 So.2d 1309, 1312 (La.1980). Extending the rule that a citizen may resist an unlawful arrest to an unlawful stop- and-frisk would belie the paramount purpose of ensuring officer safety by encouraging the use of force on police officers. Law enforcement officials are called upon in the field to make split-second decisions regarding their own safety, and whether the officer did, in hindsight, possess articu-lable suspicion to justify the frisk should be resolved in the courtroom rather than in the streets. See Maryland v. Blackman, 94 Md.App. 284, 617 A.2d 619, 630 (1992).

The courts of other states which continue to recognize a citizen’s right to resist forcefully an unlawful arrest have arrived at similar conclusions. In Maryland v. Barnhard, 86 Md.App. 518, 587 A.2d 561, 566 (1991), aff'd, 325 Md. 602, 602 A.2d 701 (1992), the court declined to recognize the right to resist an unlawful Terry stop as an extension of the right to resist unlawful arrest. The Bamhard court recognized that a contrary rule would subject police officers to attack in every instance when, during the course of their investigation, they temporarily detain someone. Id. Another court, albeit in dicta, applied the Bamhard holding regarding Terry stops to the case of an illegal Terry frisk. See Blackman, 617 A.2d at 630. The Blackman court, citing the modern trend away from violent self-help, gave deference to the state’s position that a citizen is permitted to use force to prevent an unlawful arrest, but declined to extend the rule to a frisk. Id. The Supreme Court of Virginia also recently concluded that the common law right to use reasonable force to resist an unlawful arrest did not confer a similar right to resist an unlawful detention or “pat-down” search. Hill, 570 S.E.2d at 808. The Hill court surmised that, because a detention is a “brief intrusion on an individual’s liberty,” the provocation resulting from an illegal detention is far less significant than the provocation that attends an illegal arrest. Id.

Based on the language of the statutes and jurisprudence restricting the right of resistance to an actual unlawful arrest, the aforementioned policy considerations supporting Terry stop-and-frisks, namely ensuring officer safety and discouraging violence on the streets, and the original intent of the legislature in passing these pre-Terry statutes, we decline to recognize the right to resist an unlawful stop-and-frisk in Louisiana. The policy considerations underlying the right to resist arrest, including the complete deprivation of liberty and the more extensive duration of an arrest than of a detention, do not raise corresponding concerns in the context of a temporary detention |13and protective frisk. Unlawful detention must therefore rise to the level of arrest to justify forceful resistance.

CONCLUSION

Although the police officers did not articulate sufficient facts to justify their frisk of defendant for weapons in conjunction with the investigatory Terry stop, the officers had the right to arrest defendant when he committed a battery upon them in an attempt to resist the unlawful frisk. There is no right to resist an unlawful stop-and-frisk under the long-standing rule permitting a citizen to resist an unlawful arrest. Accordingly, the officers lawfully arrested defendant for battery on a police officer, and the district court properly admitted the contraband recovered during the search incident to that arrest.

DECREE

COURT OF APPEAL REVERSED; CONVICTION AND SENTENCE REINSTATED; REMANDED TO DISTRICT COURT.

JOHNSON, J., dissents and assigns reasons.

11 JOHNSON, Justice,

dissenting.

Officer Germann stated that in his experience it was perfectly normal for someone who had been stopped by the police to be nervous. Essentially, the only justification provided for Officer Germann’s belief that the defendant was armed was that he continued to be nervous or become more nervous while the officers were preparing the field interview card and checking to see if he was wanted. Given that in Officer Ger-mann’s experience, the defendant’s behavior was essentially normal, he would be justified in patting down nearly every individual stopped on the basis of a nervous disposition.

As the court of appeal correctly determined, the law requires more. The officer’s testimony failed to establish articu-lable facts that created a reasonable suspicion that danger existed, and it does not reflect anything more than an “inchoate and unparticularized suspicion or ‘hunch,’ that the defendant was armed.” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

Moreover, as the court of appeal observed, the police could not “bootstrap” the illegal frisk into probable cause for an arrest when the defendant lost his composure and swung his elbow into Officer Ger-mann’s chest as Louisiana has long followed a distinctly minority rule that an individual may lawfully resist an illegal arrest. In State v. Stowe, 93- 2020 (La.4/11/94), 635 So.2d 168, 176, this Court stated: Citing, City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781, 784 (La.1943). Applied in the present context, that principle allowed the defendant, although lawfully detained by the officers, to resist a search which was not “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has the right to resist an unlawful arrest, and in preventing such illegal restraint of his liberty, he may use such force as necessary.

For the aforementioned reasons, I respectfully dissent.

      . Defense counsel did not raise as error the officers’ decision to frisk defendant.

      . Under State v. Crosby, 338 So.2d 584 (La.1976), an accused may enter a guilty plea, reserving his right to appellate review of pre-plea assignments of error.

      . As the court of appeal noted, the testimony reflects that Officer Germann could not recall the exact time he stopped defendant, but that it was past curfew time. The officers stopped defendant on April 30, 2001 — a Monday. On weekdays during the school year in New Orleans, "a minor cannot remain in a public place or on the premises of an establishment” between the hours of 8:00 p.m. and 6:00 a.m. See City of New Orleans Municipal Code, sec. 54-414.

      . In fact, when asked specifically if he suspected the defendant of possessing any weapons, the officer merely stated: "I felt he might hscve a weapon. He was by a police car, and I asked him if he was a police officer. .And he replied, 'No.' ”

      . See La.Rev.Stat. 14:108(A) ("Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest ... when the offender knows or has reason to know that the person arresting ... is acting in his official capacity.”); see also La.Code Crim. Proc. art. 220 ("A person shall submit peaceably to a lawful arrest (emphasis added).

      . La.Rev.Stat. 14:108 was passed in 1952. The predecessor to La.Code Crim. Proc. art. 220, La.Rev.Stat. 15:64, was passed in 1928. La.Rev.Stat. 15:64 provided: "Everyone must submit peaceably to a lawful arrest, and, if he resists, any person lawfully arresting him may use such force as may be necessary to overcome the resistance.”

      . Because the Blackman court ultimately concluded that the Terry frisk at issue in that case was lawful, its sentiments regarding the right to resist forcefully an unlawful Terry stop were not essential to that court's holding. We nonetheless find its reasoning persuasive.


author: hPER CURIAM.

text:
    In re Katherine Thompson TOUSANT.
    No. 2003-B-0062.
    Supreme Court of Louisiana.
    June 27, 2003.
    Rehearing Denied Sept. 5, 2003.

      Charles B. Plattsmier, Baton Rouge, Julie B. White, for Applicant.
    Katherine T. Tousant, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

hPER CURIAM.

This disciplinary matter arises from eighteen counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Katherine Thompson Tousant, an attorney licensed to practice law in Louisiana, but who is currently suspended from practice on an interim basis. Finding clear and convincing evidence of numerous instances of conversion of client and third party funds, we now disbar respondent.

UNDERLYING FACTS

Mitchell Matter

In March 1998, Iris Mitchell retained respondent to represent her in a personal injury matter. After being retained, respondent refused to return Ms. Mitchell’s telephone calls or answer her letters. Respondent failed to file suit on behalf of Ms. Mitchell, and, as result, Ms. Mitchell’s claim prescribed.

Leger Matter

In 1996, Pearl Leger retained respondent for $1,000 to institute appellate and/or post-conviction proceedings in a criminal case involving her son. For more than one year, Ms. Leger attempted to communicate by telephone and in writing with | ¡.respondent, but was unsuccessful. Respondent failed to take any action in the matter and failed to refund the unearned fee.

Citizen Matter

In October 1996, Betty Citizen paid respondent $1,500 to represent her son in a pending criminal matter. Respondent neglected to enroll as counsel or take any action on behalf of her client.

In June 1997, Ms. Citizen retained respondent to represent her son in a second criminal case, and paid respondent $1,000 toward a total fee of $10,000. Days later, Ms. Citizen asked respondent to refund the deposit because she could not afford the representation. Respondent told Ms. Citizen that she would refund the money. Thereafter, respondent closed her office and had no further communication with Ms. Citizen. Respondent has never accounted for the $2,500 she was paid by Ms. Citizen, nor has she refunded any unearned fee.

Garcia Matter

Cevero Garcia retained respondent for $4,920 to represent him in appellate proceedings stemming from a criminal conviction where he was facing a substantial prison term. Respondent also obtained Mr. Garcia’s power of attorney and, without authorization, withdrew approximately $23,000 from Mr. Garcia’s employee stock plan and converted the funds to her personal use.

Respondent failed to file Mr. Garcia’s appeal timely and was held in contempt for her omission. Subsequently, Mr. Garcia and his daughter retained two other attorneys to pursue the matter, who were unsuccessful in retrieving the client’s funds and files from respondent.

\nThird Party Medical Provider Matter

Respondent settled the personal injury cases of three clients, and withheld funds totaling $5,625.75 from their respective settlements to reimburse a third party medical provider. Respondent failed to remit these funds to the medical provider, despite repeated requests, and converted these funds to her own use. Although respondent ultimately provided restitution in the amount of $1,000, the provider retained counsel, who obtained a civil monetary judgment against respondent for the balance. Respondent has made no attempt to satisfy this judgment.

Hinton Matter

In 1996, Violet Hinton retained respondent for $800 to handle an appeal. Respondent performed no work in the case. Although respondent indicated she was willing to refund the fee, she failed to do so.

Nix Matter

In August 1995, Lawrence Nix retained respondent for $500 to handle a real estate matter. Respondent performed no work in the case and failed to communicate with her client. Respondent refused to return Mr. Nix’s original documents and retainer fee. Mr. Nix obtained a monetary judgment against respondent, but she has made no effort to satisfy this judgment.

Dawson Matter

In December 1996, Richard Dawson retained respondent for $1,500 in connection with a criminal matter. Mr. Dawson requested that respondent assist him |4in withdrawing his guilty plea. Respondent did not withdraw the guilty plea and Mr. Dawson was sentenced to serve five years in prison.

Subsequently, respondent appeared for a deposition before the ODC regarding the matter. Respondent represented that she spent ten hours on the case. The ODC asked her to furnish details regarding the representation. Respondent failed to do so.

Robertson/Brown Matter

Phillip Robertson and his cousin, Donald Brown, retained respondent to represent Mr. Brown in a criminal matter. Mr. Robertson paid respondent a $5,000 retainer fee. Subsequently, respondent met with Mr. Brown for two to three hours while he was incarcerated. She took no other action in the case and failed to communicate with her client, forcing Mr. Brown to retain new counsel. Respondent indicated she would refund the fee, but failed to do so.

Rideau Matter

In February 1997, Leo Rideau retained respondent to handle a real estate transaction. Mr. Rideau gave respondent $5,500 in cash, $500 of which was a retainer fee and the balance of which was to be held in trust for the sale of immovable property. Respondent did not deposit the funds into a trust account, but instead placed the cash in a file box in her office. Respondent thereafter failed to communicate with her client and converted the funds.

Guidry Matter

Respondent was court-appointed counsel for Rogers Guidry, Jr. in criminal proceedings. Respondent failed to take any action on behalf of her client, including |Rneglecting to file the appeal. She also neglected to communicate with Mr. Guidry for over a period of two and one-half years, as well as lost the trial transcripts that he gave to her to pursue post-conviction relief.

Joubert Matter

Linda Joubert retained respondent to handle a personal injury claim arising out of an automobile accident. In September 1996, Ms. Joubert’s insurance carrier settled the collision portion of the claim for $4,482.55. Respondent did not inform Ms. Joubert of the settlement. Without authorization, respondent cashed the settlement check and converted the funds to her personal use. Ms. Joubert has never received any money from respondent, nor has respondent communicated with her.

Frelot Matter

In October 1997, Mary Frelot, a California resident, retained respondent to handle the succession of her mother. Ms. Frelot paid respondent a $750 retainer fee and $150 for court costs. Thereafter, respondent failed to take any substantive action in the matter. Ms. Frelot made numerous efforts to contact respondent, but was unsuccessful.

Francis Matter

In February 1998, Cynthia Ann Francis retained respondent for $500 to obtain a bond reduction for Mrs. Francis’ son in a criminal matter. Respondent took no action in the case. Although respondent advised Ms. Francis that a court date was set, 1 fiMs. Francis learned no date had ever been set. Respondent agreed to refund the fee paid by Ms. Francis, but never did so.

Tyler Matter

In November 1998, Patricia Tyler retained respondent on a contingency fee basis to represent her in a personal injury claim arising out of a slip and fall accident in Arkansas. Ms. Tyler provided various accident-related documents and evidence, including the shoes she was wearing at the time of the accident, to respondent.

Subsequently, Ms. Tyler retained an attorney licensed to practice law in Arkansas to pursue the matter in that state. On numerous occasions, both Ms. Tyler and her new counsel tried to retrieve Ms. Tyler’s file from respondent. Although the items were crucial to Ms. Tyler’s ease, respondent failed to comply with the requests.

Broussard Matter

In April 1997, Antoine Broussard retained respondent to file a civil suit on his behalf against the Calcasieu Parish School Board. Respondent agreed to take the case for a flat fee in the amount of $800. Mr. Broussard gave respondent an initial deposit of $400 and later paid an additional $50. However, respondent performed no work in the matter and, subsequently, refused to refund the unearned fee or return her client’s file.

Lewis Matter

In April 1998, Clifford Lewis, a Texas resident, retained respondent to institute divorce proceedings on his behalf. Mr. Lewis paid respondent $400 of the $500 fee |7she requested. Subsequently, respondent failed to take any action in the matter. For over six months, Mr. Lewis took extensive measures to communicate with respondent by telephone and correspondence, but was unsuccessful. Eventually, he took time off from work and traveled from Texas to track respondent down. At that time, she misrepresented to him that she had filed suit in the divorce proceedings. Subsequently, Mr. Lewis learned from the clerk of court that no suit had ever been filed. Mr. Lewis terminated respondent’s representation in July 1999 and demanded a return of the unearned fee, but respondent failed to comply.

Seemion Matter

In March 1999, Martin Luther Seemion retained respondent to institute a filiation proceeding. Although he paid her $500, respondent failed to take any legal action on behalf of her client. Over a period of several months, Mr. Seemion made numerous efforts to communicate with respondent, but was unsuccessful.

DISCIPLINARY PROCEEDINGS

Interim Suspension

In June 1999, while the ODC was completing its investigations of fifteen of the complaints which are the subject of the instant proceeding, respondent filed a motion seeking to be placed on disability inactive status pursuant to Supreme Court Rule XIX, § 22. We granted the request. In re: Tousant, 99-1336 (La.6/4/99), 735 So.2d 627. Thereafter, four additional disciplinary complaints were filed against respondent. In January 2001, respondent petitioned for reinstatement to active status, asserting that her disability had been removed. In connection with the petition, the ODC asked that respondent be placed on immediate interim suspension, based on the seriousness of | ¿the misconduct at issue in the nineteen disciplinary complaints pending against her. We reinstated respondent to active status and ordered an expedited hearing to determine whether she should be placed on immediate interim suspension. In re: Tousant, 01-0331 (La.3/28/01), 783 So.2d 1242. After a hearing, the committee concluded respondent posed a substantial threat of serious harm to the public. We accepted this recommendation and placed respondent on interim suspension. In re: Tousant, 01-0331 (La.6/20/01), 790 So.2d 616.

Formal Charges

Following the completion of its investigations, the ODC filed eighteen counts of formal charges against respondent alleging violations of Rules 1.1 (incompetence), 1.3 (lack of diligence), 1.4 (failure to communicate), 1.5(f)(6) (failure to refund advance fees), 1.15 (commingling and conversion of client and third party funds), 1.16(d) (failure to protect client interests upon termination of representation), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct, as well as Supreme Court Rule XIX, § 9(c) (failure to respond to a lawful demand for information from a disciplinary authority).

Respondent neglected to file an answer to the formal charges. Ultimately, the hearing committee chair signed an order declaring the factual allegations deemed admitted and proven by clear and convine-ing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3), and ordered the parties to submit written arguments and documentary evidence on the issue of sanctions. The ODC submitted evidence in support of its case; respondent made no filing.

| Recommendation of the Hearing Committee

Relying on the deemed admitted order, the hearing committee found the charges proven by clear and convincing evidence. It stated that it was convinced respondent converted and/or failed to refund fees in excess of $57,000, and that her actions were “intentional, dishonest, perhaps criminal.” The committee concluded her actions caused serious injuries to her clients and others, and severely damaged the integrity of the legal profession.

The committee recognized as aggravating factors dishonest or selfish motive, pattern of misconduct, multiple offenses, failure to cooperate, refusal to acknowledge wrongful nature of misconduct, vulnerable victims and indifference to restitution. While the committee recognized respondent’s lack of a prior disciplinary record and personal or emotional problems in mitigation, the committee concluded the sheer number of separate complaints involving serious professional misconduct “make the absence of a prior disciplinary record a most insignificant consideration given the wide swath of irreparable damage to her clients left in respondent’s wake as she engaged in private practice.” Upon consideration of these factors and jurisprudence from this court, the committee recommended imposition of disbarment.

Respondent filed an objection to the committee’s findings and the proposed sanction of disbarment.

Recommendation of the Disciplinary Board

The disciplinary board determined respondent violated the professional rules as charged. The board found respondent violated duties owed to her clients, the public, and as a professional. It noted her actions were intentional in some cases, and the | ^product of incompetence in others. The board pointed out she caused injury to her clients and third parties by converting their funds, and failing to communicate with her clients. It recognized she allowed a client’s civil claim to prescribe, and some clients lost their rights to appeal and/or to seek post conviction relief. The board found she violated a duty owed to the public through her failure to maintain personal integrity and engaging in dishonest conduct. Finally, it found her failure to cooperate in the investigation of the matters pending against her was a violation of her professional duties.

The board relied on the ABA’s Standards for Imposing Lawyer Sanctions to conclude the appropriate baseline sanction for respondent’s misconduct is disbarment. The board adopted the aggravating factors and, “few, if any,” mitigating factors cited by the committee. Considering these factors, the board recommended respondent be disbarred.

Respondent filed an objection to the findings and recommendation of the disciplinary board. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

JyDISCUSSION

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, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992).

Respondent failed to file an answer, and as a result, the factual allegations in the formal charges have been deemed admitted. Supreme Court Rule XIX, § 11(E)(3); In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715. Based on these deemed admitted facts, we conclude the rule violations alleged by the ODC have been proven by clear and convincing evidence. We turn to the issue of an appropriate sanction for respondent’s misconduct.

In addressing the issue of sanctions, we are mindful that the purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152. 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. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839.

It is beyond dispute that respondent’s misconduct is serious in nature. Seldom has this court witnessed such complete and total disregard by an attorney for the welfare of her clients. Her actions jeopardized the rights of her clients in criminal and 11 j>civil matters. She has failed to refund unearned fees, and converted client and third party funds.

Numerous aggravating factors are present, including dishonest or selfish motive, pattern of misconduct, multiple offenses, failure to cooperate, refusal to acknowledge wrongful nature of misconduct, vulnerable victims and indifference to restitution. While we identify two mitigating factors, lack of prior disciplinary record and personal problems, these factors pale in comparison to the vast amount of harm caused by respondent upon her clients.

Under these circumstances, it is clear that disbarment is appropriate. The sole remaining question is whether respondent’s conduct is so egregious that she should be permanently prohibited from applying for readmission.

In Appendix E to Supreme Court XIX, we set forth guidelines for the imposition of permanent disbarment. Guideline 1 applies to “repeated and multiple instances of intentional conversion of client funds with substantial harm.” Respondent’s misconduct in the instant case clearly falls within the parameters of this guideline. The sheer volume of client and third party funds converted by respondent and the resulting harm visited by her upon her clients as well as third parties demonstrates she represents a danger to the public. While do not lightly impose the sanction of permanent disbarment, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. Accordingly, she must be permanently disbarred.

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 listhat the name of Katherine Thompson Tousant, Louisiana Bar Roll number 21918, be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. 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.

      . The patients and the amounts owed were: Larry Brown ($2,076.90); Larry Jackson ($1,993.90); and Josephine Fuselier ($1,554.95).

      . At one point, Ms. Frelot got in touch with respondent by telephone, but respondent hung up the phone without communicating with her.

      . Ms. Tyler had sustained serious injuries and incurred in excess of $40,000 in medical expenses.

      . Standard 4.41 provides disbarment is generally appropriate when: (a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or (b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or (c) a lawyer engages in a pattern of neglect with respect to a client matter and causes serious or potentially serious injury to a client.
      Standard 7.1 provides disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . On the day oral argument was scheduled, respondent filed a motion for continuance, citing medical problems. We denied the motion, but allowed respondent to file a supplemental brief. Respondent failed to do so.