author: VICTORY, J.

text:
    Jody and Lora BORDELON Individually, and on Behalf of their Minor Child, Brandon v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.
    No. 2003-C-0202.
    Supreme Court of Louisiana.
    Oct. 21, 2003.
    As Corrected Jan. 28, 2004.

      Daniel A. Reed, Seale, Smith, Zuber & Barnette, Baton Rouge, Charles F. Gay, Ann M. Halphen, Amy C. Lambert, Adams & Reese, Batn Rouge, for applicant.
    Joseph E. Stockwell, Baton Rouge, for respondent.
   VICTORY, J.

We granted this writ application to determine whether failure to request service of citation on a defendant within 90 days of the filing of a lawsuit, as required by La. C.C.P. art. 1201, renders the entire lawsuit an absolute nullity by operation of law, such that the filing of that suit does not serve to interrupt prescription under La. C.C. art. 3463. After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and find that, in the absence of non-service for bad faith reasons, the filing of the lawsuit interrupts prescription, even if the defendant is not served within 90 days.

FACTS AND PROCEDURAL HISTORY

This is a medical malpractice case brought by the parents of Brandon Borde-Ion against Dr. Andrew Zaruski and the Medical Center of Baton Rouge for failure to diagnose testicular torsion in December of 1995. After a medical review panel issued an opinion, the Bordelons timely filed suit against Dr. Zaruski and the Medical Center on February 6, 1998, in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. Service was not requested on either defendant. The Medical Center eventually filed a Motion to Dismiss for failure to request service. The Bordelons did not offer any evidence to oppose the motion or to show good cause for the failure to request service. Thus, the trial court granted the motion to dismiss on August 3, 1998, in open court pursuant to La. C.C.P. art. 1201. The judgment was signed on August 10, 1998. On August 3, 1998, the same day that the motion to dismiss was granted | Pin open court, the Bordelons filed a second suit against the Medical Center in the same district court. The Medical Center filed an exception of prescription on October 26, 1998, which was granted on January 4, 1999, with the trial judge finding that the first suit was effectively abandoned by non-service and did not serve to interrupt prescription. The First Circuit affirmed in part, reversed in part, and remanded the case to the trial court to allow plaintiffs to amend their petition to allege facts which would demonstrate an interruption of prescription. On June 9, 2000, after the second suit was remanded to the district court, the Bordelons amended their petition, pleading that they had timely filed a first lawsuit which interrupted prescription and adding Dr. Zaruski as a defendant. The defendants filed exceptions raising the objection of prescription, and the trial court again sustained the exceptions and dismissed the Bordelon’s petition, reasoning:

Failure to serve is to be treated as an absolute nullity. As Black’s [Law Dictionary] suggests, a nullity is to be considered as though it never occurred. This is analogous to the treatment of the abandonment provisions.... Here, as with abandonment, an order is not necessary to effectuate the dismissal of the claim. After the 90 day period has passed, by operational (sic) law, the case is deemed dismissed. Although, the plaintiff[s] filed the second suit before the order of dismissal was signed, the case had already been dismissed by operation of law. Thus, the plaintiff[s] cannot take advantage of interruption of prescription. Keeping with the intent of the law, I consider that the initial suit is an absolute nullity. As with abandonment, a nullity is considered never to have occurred. Filing a suit alone, did not interrupt prescription. Without service on the defendants, the lawsuit was an absolute nullity, which does not require a judgment. Therefore, the plaintiffs’] claim has prescribed, and I’m going to grant this.

The First Circuit Court of Appeal granted the Bordelon’s writ application and reversed, finding that the first suit filed within the prescriptive period interrupted prescription as long as that suit was pending, and therefore the filing of the second suit before the judgment was signed dismissing the first suit was timely. Bordelon v. Medical Center of Baton Rouge and Andrew T. Zaruski, M.D., 01-2164 (La.App. 1 Cir. 12/20/02), 836 So.2d 407. We granted the defendants’ writ application. Bordelon v. Medical Center of Baton Rouge and Andrew T. Zaruski, M.D., 03-0202 (La.4/4/03), 840 So.2d 1209.

DISCUSSION

Prescription runs against all persons unless an exception is established by legislation. La. C.C. art. 3467. When a petition reveals on its face that prescription has run, the plaintiff bears the burden of establishing that the claim has not prescribed. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1228; Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206. The three legislative principles on which plaintiff can rely to meet that burden are suspension, interruption, and renunciation. Id.

La. R.S. 9:5628 provides the prescriptive period in medical malpractice cases as follows:

No action for injury or death against any physician, ... hospital ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

In this case, the petition filed on August 3, 1998, reveals on its face that prescription has run. However, plaintiffs allege that prescription was interrupted by virtue of their first suit timely filed on February 6, 1998. Indeed, La. C.C. art. 3462 clearly states that “[prescription is interrupted when the ... obligee commences action against obligor, in a court of competent jurisdiction and venue.” There is no question that the first lawsuit was filed in a court of competent jurisdiction and venue. Further, plaintiffs rely on La. C.C. art. 3463, which provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at trial.

As the comments to La. C.C. art. 3463 correctly recognize, “if an interruption results and the action is dismissed without prejudice, the period during which the action was pending does not count toward the accrual of prescription. The plaintiff then has the full prescriptive period within which to bring a new action.” La. C.C. art. 3463, Comment (b) (citing Hebert v. Cournoyer Oldsmobile-Cadillac-G.M.C., Inc., 405 So.2d 359 (La. 4th Cir.1981)); see also LeBreton, supra at p. 1229 (“interruption not only stops the running of prescription, it ‘annuls the commenced prescription so that after the interruption ceases, a new prescription must commence.’ ”)

Thus, the plaintiffs argue, prescription was interrupted by the filing of their first suit on February 6, 1998, and that suit was pending until August 10, 1998, the day the judgment dismissing the first suit was signed, or at least until August 3, 1998, the day the case was dismissed in open court. Prescription began to run anew from that time, therefore, their second suit was timely filed on August 3, 1998.

Defendants rely on La. C.C.P. art. 1201 for their argument that dismissal for failure to serve within 90 days renders a petition absolutely null such that the suit does not interrupt prescription. La. C.C.P. art. 1201 provides in part:

(A) Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null.
(C) Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. Defendant may expressly waive the requirements of this Paragraph by any written waiver.

In this case, the first suit was dismissed without prejudice due to plaintiffs’ failure to request service upon the defendants within this 90 day time period, pursuant to La. C.C.P. art. 1672(C), which provides:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

Relying on the Third Circuit case of Bellard v. Lake Charles Memorial Hospital, 00-1599 (La.App. 3 Cir. 4/4/01), 787 So.2d 1017, defendants argue that failure to request service on a defendant within the 90-day time period without good cause renders the lawsuit an absolute nullity which does not interrupt prescription. In Bellard, two identical lawsuits were pending at the same time, one filed in August of 1999 and the other filed in February of 2000. However, the defendant was not served within 90 days in the August 1999 lawsuit. The trial court granted an exception of lis pendens and dismissed the second suit. The court of appeal reversed, relying on La. C.C.P. art. 1201 that absent citation and service of a pleading, all proceedings associated with the pleadings are “absolutely null,” and found that since the plaintiff never effected citation and service of the August 1999 suit, those proceedings were absolutely null, therefore, there were not two suits pending at the same time. 787 So.2d at 1019.

We disagree that Bellard’s holding should apply in this case. Instead, we agree with the reasoning of two other court of appeal cases, and the court of appeal in this case, that have expressly addressed the affect of the 90-day service rule of La. C.C.P. art. 1201 on the interruption of prescription, and have held that in the absence of bad faith, a timely filed lawsuit in a court of competent jurisdiction and venue serves to interrupt prescription, even where the defendant is not served within the 90 day time period. See Futrell v. Cook, 00-2531 (La.App. 4 Cir. 12/19/01), 805 So.2d 325; Jacobs v. Louisiana Farm Bureau Insurance Companies, 01-837 (La.App. 3 Cir. 12/19/01), 815 So.2d 858.

The facts of Jacobs are essentially the same as the facts of this case, except that in Jacobs, the second suit was filed after the judgment dismissing the first suit for non-service within 90 days was actually signed. The court of appeal in Jacobs affirmed the trial court’s finding that the suit had not prescribed, specifically declining to follow its earlier holding in Bellard that without citation and service, the entire lawsuit is absolutely null under La. C.C.P. art. 1201. The Jacobs court concluded instead that, without citation and service, it is only the court’s actions, “the proceedings,” that are absolutely null, not the lawsuit itself; therefore, prescription is interrupted by the filing of the first suit. Jacobs, supra at 862.

In holding that prescription was interrupted by a timely filed first suit, even where plaintiff did not serve the defendants within the 90-day period of La. C.C.P. art. 1201, the court in Jacobs applied the legal principle that when interpreting a statute, courts must consider all laws together, which are on the same subject matter, La. C.C. |7art. 13, and considered La. R.S. 13:5107 and La. R.S. 9:5801, both of which show the legislative intent on this issue. La. R.S. 13:5107, which applies to suits against the state, provides in part:

D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue. (Emphasis added.)

We agree with the Jacobs’ reasoning that while this statute may not be directly applicable as it involves suits against the state, “[s]ignificantly, when the legislature enacted the statute, it expressly provided that ‘the effect of interruption of prescription as to other persons shall continue,’ ” “deliberately confirming] La. Civ.Code art. 3463’s ‘interruption of prescription’ effects, as the article pertains to private entities.” 815 So.2d at 861. Indeed, had the legislature intended that prescription is not interrupted as to all defendants dismissed because of non-service within 90 days under La. C.C.P. art. 1672(C), the portion of La. R.S. 13:5107 specifying that prescription is not interrupted when the state is dismissed for non-service would be redundant, and the portion of La. R.S. 13:5107 stating that interruption continues against all “other persons,” would be nonsensical.

The court in Jacobs also correctly relied on La. R.S. 9:5801 in finding that, in the absence of bad faith, a suit filed but not served within 90 days interrupts prescription. La. R.S. 9:5801 applies to the facts of this case and Jacobs as it directly addresses interruption of prescription in cases where a defendant is dismissed from Jesuit because service was not timely requested. Included in the part of the Civil Code Ancillaries entitled “Part II, Interruption and Suspension” and specifically entitled “Involuntary dismissal, failure to timely request service and citation,” La. R.S. 9:5801 provides:

Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3463, shall continue.

This statute clearly provides that where a defendant is dismissed because service was not timely requested, interruption of prescription is considered never to have occurred if a court finds the failure to serve was due to bad faith. See Frank L. Ma-raist and Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1, Civil Procedure, § 8.3, p. 183 and n. 26. As in Jacobs, in this case there was no argument or indication that plaintiffs acted in bad faith in failing to serve the defendants, without which, the statute clearly provides, interruption of prescription continues. Certainly, there would have been no reason for the legislature to specify in La. R.S. 9:5801 that prescription is not interrupted where a defendant is dismissed from suit because of non-service within 90 days if the non-service was in bad faith, if it had intended that prescription would not be for all defendants not served within 90 days under La. C.C. art. 3463. Likewise, by providing that “as to any other defendant ... an interruption of prescription, as provided in Civil Code Article 3463, shall continue,” the legislature was expressing its intent that in cases not involving bad faith, interruption of prescription continues even if the defendant is not served within 90 days.

We also reject defendants’ argument that a finding of lack of “good cause” for untimely service requiring dismissal under La. C.C.P. art. 1201 equals “bad faith” under La. R.S. 9:5801 such that interruption of prescription is considered never to have occurred. See Futrell, supra In Futrell, a medical malpractice case such as this one involving multiple defendants, the court relied on La. R.S. 9:5801 and noted that interruption of prescription is considered never to have occurred only where a defendant is dismissed from suit because service was not timely requested and the court finds that failure to timely request service was due to bad faith. Id. The court rejected the medical malpractice defendants’ argument that lack of good cause for service under La. C.C.P. art. 1672(C) equates to a finding of bad faith under La. R.S. 9:5801, finding no basis in the law for such an assumption. Id.

We agree. La. C.C.P. art. 1201, which requires dismissal for non-service unless good cause is shown, and La. R.S. 9:5801, which provides that interruption of prescription is considered never to have occurred when a defendant dismissed because of non-service within 90 days for bad faith reasons, are not inconsistent or ambiguous and can be read together in order to give the intended meaning to each. La. C.C.P. art. 1201 provides that a court need not dismiss a defendant for non-service within 90 days if the plaintiff shows good cause for failure to serve. Such a case is not dismissed and the court can then order that the plaintiff serve the defendant within a specified time. However, La. R.S. 9:5801 goes one step farther and provides that failure to serve a defendant within 90 days, where no good cause is shown, not only results in dismissal, but, when a court finds that the untimely or non-service was due to bad faith, this also results in the first suit not interrupting prescription as to that defendant. Lack of good cause and bad faith have different meanings in the law and the legislature is presumed not to use one term when it intended to use another.

Finally, we address defendants’ argument that the conclusion that allowing the filing of a petition without service and citation to interrupt prescription as to a second suit allows a plaintiff another year to file and potentially allows a plaintiff to prolong the resolution of a case indefinitely. We are unpersuaded by this argument. Pursuant to La. R.S. 9:5801, a plaintiff who files lawsuits and then has the lawsuits dismissed for failure to serve the defendants within the 90-day period, only to file the same lawsuit again can be found to be in bad faith for any number of reasons under La. R.S. 9:5801. By enacting La. R.S. 9:5801, the legislature dealt with the type of situation that defendants are concerned about. Secondly, under La. C.C.P. art. 561, a lawsuit is deemed abandoned without formal order, when a party fails to take any step in its prosecution or defense in the trial court for a period of three years, and under La. C.C. art. 3468, interruption of prescription is considered never to have occurred by virtue of filing suit in a court of competent jurisdiction and venue when the plaintiff abandons the suit, voluntarily dismisses it, or fails to prosecute it at trial. Contrary to the trial court’s reasoning in this case, plaintiffs did not “abandon” the lawsuit in this case by virtue of their failure to request service in 90 days, for the above articles clearly require a three-year period of inaction by a plaintiff for a lawsuit to be deemed abandoned. Had the legislature intended to shorten the abandonment period to 90 days for non-feervice.n it could have included that in the conditions under which prescription is not interrupted under La. C.C. art. 3463, which it did not.

CONCLUSION

Prescription is interrupted by the timely filing of a lawsuit in a court of competent jurisdiction and venue, and continues as long as that suit is pending. A request for service of citation upon the defendant or defendants is required within 90 days, after which time, the court, on its own motion or that of any other party, shall dismiss from the action the defendant against whom service was not requested, unless good cause for non-service within 90 days is shown. However, unless that unserved party is the state, that lawsuit, although not timely served, interrupts prescription, unless the court finds that failure to request service was due to the plaintiffs bad faith. In that case, interruption of prescription is considered never to have occurred. Because there was no finding, or allegation, that the plaintiffs’ failure to request service upon the defendants in the first lawsuit filed on February 6, 1998, that lawsuit, although dismissed for non-service, served to interrupt prescription such that plaintiffs’ second lawsuit filed on August 3, 1998 was timely filed.

DECREE

For the reasons expressed herein, the judgment of the court of appeal is affirmed.

AFFIRMED.

      . Article 1201(C) was amended in 1997 to add the 90 day time frame to the requirement to serve a party.

      . La. C.C.P. art. 531 provides in part that "[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.”

      . We note also that a member of the panel that decided Bellard concurred in Jacobs, pointing out that, while he agreed with Bellard's holding that pleadings constituted "proceedings” under La. C.C.P. art. 1201, the court in Bellard was not faced with the issue of prescription making that case inapplicable, but had it been, his view would have been that "civil action or suit, while absolutely null under La. C.C.P. art. 1201(A), still has the effect of interrupting prescription as long as it is pending in a court of competent jurisdiction in the proper venue.” Jacobs, supra at p. 865 (concurring opinion by Judge Gremil-lion).

      . Specifically, the court in Jacobs reasoned:
      We decline to follow Bellard, primarily, because we believe that its finding that "[a]b-sent citation and service of the pleading pursuant to La.Code Civ.P. art. 1201, all proceedings associated with the pleading are absolutely null[,]’ " impliedly includes the lawsuit itself. This finding, if followed, would nullify the provision in the second sentence of La.Civ.Code art. 3463 as well as La.R.S. 13:5107(D)(3)'s last clause (confirming that prescription is interrupted for private entities), since neither could ever be applied if the interpretation of La.Civ.Code art. 3463 were correct. Furthermore, this interpretation is inconsistent with the tenets of La.Code Civ.P. art. 1672(C), and La.Code Civ.P. art. 1201(A).

      An absolute nullity is "an act in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” This would mean that, at the 90 day mark without service, no suit exists. It is as if it had never been filed. Thus, there would be nothing to dismiss and nothing to continue. Yet, La.Code Civ.P. art. 1672(C) requires that a suit be dismissed when service is not requested within ninety days, and the article allows for the suit's continuation, if good cause is shown why service could not have been requested; La.Code Civ.P. art. 1201(C) and La.R.S. 13:5107(D) provide that dismissal can be waived, permitting the suit to proceed. This implies that there is a suit in existence after 90 days have elapsed without service. However, under Bellard's absolute nullity holding, all of the above provisions would be moot, since there would be no suit to waive or on which to proceed after 90 days. Obviously, if the legislature intended that a suit becomes null and void after 90 days, if there has been no citation and service (the Bellard interpretation), it would not have drafted these other provisions for waiver and continuation of the same suit, since they are inconsistent with Bellard.

      Further support for our interpretation, sub judice, lies within La.Code Civ.P. art. 1201(A), which provides that "Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null.” When this article is read in pari materia with others, above, on the same subject matter, it is apparent that the legislature intended that "all proceedings” on the suit, not the suit, would be absolutely null without citation and service. Otherwise, again, the other articles and statutes have no force. While "proceedings” encompass "pleadings” (suits) because, generally, without pleadings, there can be no proceeding, "pleadings” and "proceedings” are not synonymous. "Pleadings” are the statement of allegations which gives notice to an opposing party of the allegations against him. "Proceedings” are courts' activities in processing the legal action. Thus, under La. Code Civ.P. art. 1201(A), it is the courts’ actions that are absolutely null, not the pleadings, themselves, because, under the law, the "defect” of lack of citation and service can be waived or cured, after which courts can proceed.

        Jacobs, 815 So.2d at 861-62.

      . In Futrell, the plaintiffs filed a timely lawsuit against the defendants, but did not serve them, instead requesting that the defendants waive service. Defense counsel agreed, on the condition that the plaintiffs send him a filed copy of the lawsuit. The plaintiffs failed to do so. When plaintiffs requested again six months later that defense counsel waive service, defense counsel refused and plaintiffs then served defendants with the lawsuit. Defendants filed exceptions of prescription and lack of 90 day service, which the trial court granted, finding that "[p]laintiffs failed to request service of the Petition within ninety days of filing as is required by C.C.P. art. 1201 and therefore these proceedings were dismissed pursuant to C.C.P. art. 1672(C).” Further, the trial court found, "in these circumstances, interruption of prescription is considered never to have occurred. See La. R.S. 9:5801.” The court of appeal affirmed the dismissal for non-service within 90 days but reversed the judgment granting the exception of prescription. Futrell, supra at 328-329.

      . Black's Law Dictionary defines "good cause” as "a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.” Thus, lack of good cause would be a lack of legally recognized excuse for non-service.

      . Black's Law Dictionary defines "good faith” as "an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inner spirit ...” Black's Law Dictionary defines "bad faith” as:
      the opposite of "good faith,” generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. Term 'bad faith' is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.


source: Caselaw Access Project

author: KNOLL, Justice,

license: Public Domain

text:
    STATE of Louisiana ex rel. Donald TILLEY v. Burl CAIN.
    No. 2003-KP-1000.
    Supreme Court of Louisiana.
    Dec. 19, 2003.
   In re State of Louisiana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, Nos. 3-96-724.

Writ denied.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ and assign reasons.

KNOLL, Justice,

dissenting.

I respectfully disagree that defendant, Donald Tilley, is entitled to post-conviction counsel under the circumstances of this case, and dissent for the reasons I assigned in State ex rel. Neal v. Cain, 02-KP-2258 (La.10/3/03), 871 So.2d 1071.


author: PER CURIAM.

text:
    STATE of Louisiana v. Richard E. NOMEY, Jr.
    No. 2004-KK-0401.
    Supreme Court of Louisiana.
    April 2, 2004.
   PER CURIAM.

WRIT GRANTED; TRIAL COURT ORDER REINSTATED.

We find that the trial court did not abuse its discretion in ordering the sequestration of an assistant district attorney from a hearing on a motion to recuse the district attorney and the assistant district attorney, when they had been subpoenaed to appear as witnesses at the hearing.

The sequestration of witnesses is controlled by C.E. art. 615, which reads in pertinent part:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
* * *

C.E. art. 615.

When a party requests that the court invoke the rule, the language of the statute makes it clear that the sequestration of witnesses is mandatory, unless a witness falls within one of the statute’s four specific exceptions, or if the witness should be allowed to remain “in the interests of justice.” The trial judge found that none of the four exceptions applied in this matter, and that the interests of justice did not require the assistant district attorney’s presence.

The State argues that the assistant district attorney is “[a] person whose presence is shown by a party to be essential to the presentation of his cause, such as an expert,” the third exception to the rule. The purpose of the sequestration article is to prevent witnesses from being influenced by the testimony of earlier witnesses. State v. Stewart, 387 So.2d 1103 (La.1980). Witnesses such as experts are exempted from the rule because they are expected to give their professional opinion of the testimony of other witnesses and of the evidence in a case. Here, the reason for the assistant district attorney’s sequestration is to prevent his testimony from being influenced by the testimony of the district attorney, precisely the danger the rule is designed to avoid.

Neither did the trial judge abuse his discretion in determining that the interests of justice did not require the assistant district attorney’s presence during the questioning of other witnesses at the hearing of the motion to recuse. Despite the State’s arguments to the contrary, the district attorney’s office has other attorneys available who are fully capable of handling a motion hearing.

JOHNSON and WEIMER, JJ., would deny the writ for the reasons assigned by the Court of Appeal.

       Further, Rule 3.7(a) of the Rules of Professional Conduct states that "[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work substantial hardship on the client."


text:
    In re Jo Anne FLEMING.
    No. 2004-B-0783.
    Supreme Court of Louisiana.
    April 7, 2004.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Jo Anne Fleming, Louisiana Bar Roll number 8393, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Bernette J. Johnson

Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Gary MORRISON.
    No. 2003-KK-2790.
    Supreme Court of Louisiana.
    April 8, 2004.
    Rehearing Denied May 24, 2004.
   PER CURIAM.

Writ granted; case remanded to the trial court. Because the trial court ruled the defense expert’s testimony regarding aural/spectrographic voice identification inadmissible before the state presented any evidence of such testimony’s claimed lack of reliability, the present record does not provide this Court with an adequate basis for determining whether the trial judge properly exercised his gate-keeping function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993), despite evidence presented by defendant that voice identification analysis has been subjected to peer review and publication, has a known error rate, and has a degree of acceptance in the relevant scientific community.

Accordingly, we reverse the ruling below, and remand the matter to the district court to afford the state the opportunity to present any evidence it may have which might call the admissibility of testimony regarding aural/spectrographic analysis into question and for the court to rule anew on the admissibility of the evidence at trial.

KNOLL, J., would deny the writ.


text:
    STATE of Louisiana v. Brian SALTZMAN.
    No. 2003-KK-1423.
    Supreme Court of Louisiana.
    April 8, 2004.
   PER CURIAM.

Granted. The decision of the court of appeal is vacated to the extent that it orders suppressed the initial statements made by the defendant to the child protection investigators before he received Miranda warnings from the detective who observed the interview and then placed the defendant under arrest at its conclusion. The ruling of the trial court denying the defendant’s motion to suppress his statements in their entirety is therefore reinstated.

In determining whether an individual is in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), courts must consider all of the circumstances surrounding the interrogation, and “the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of-the degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). This determination “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officer or by the person being questioned.” Id. That an individual is a suspect of the police conducting a criminal investigation therefore does not determine whether the interrogation occurs in a custodial context for purposes of Miranda, and “[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, disposi-tive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.” Stansbury, 511 U.S. at 325, 114 S.Ct. at 1530. Accordingly, “an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.” Id.

In the present case, the defendant went to the Office of Child Services voluntarily, and he was not arrested or otherwise restrained until after the interview ended and the detective formally placed him under arrest. Any reasonable person in defendant’s position would have realized that he was the focus of a criminal investigation when the child protection investigators cajoled him to stop lying after he initially denied any misconduct. However, when the defendant asked the detective whether he was going to jail, and the officer replied he would talk to him at the end of the interview with the child protection investigators, defendant failed to ask if the detective meant that he was not free to leave and was therefore in custody. In fact, the detective testified at the suppression hearing that at this point the defendant had been free to walk out of the office because he “hadn’t admitted to anything yet.” The detective’s subjective determination that defendant “probably would not have been free to go” after he then began making inculpatory admissions to the child protection investigators, ie., that the officer had decided to make an arrest, was not communicated to the defendant until the end of the interview, when Miranda warnings and formal arrest followed.

Under these circumstances, the defendant was not “in custody” for Miranda purposes at the time he made his first set of inculpatory statements and the trial court therefore correctly denied the motion to suppress his initial statements and the videotaped statement which followed his formal arrest and transportation to the Calcasieu Parish Sheriffs Office.


text:
    In re Michael M. CHRISTOVICH.
    No. 2004-OB-0516.
    Supreme Court of Louisiana.
    April 13, 2004.
   ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed on March 1, 2004 by Michael M. Christovich, Louisiana Bar Roll number 4118, and the concurrence thereto filed by the Office of Disciplinary Counsel on the same date, and further considering that respondent has been advised of the court’s March 24, 2004 amendment to Rule 5.5(c) of the Rules of Professional Conduct, and that he has notified the court, through counsel, of his desire to maintain the foregoing petition,

IT IS ORDERED that the request of Michael M. Christovich for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Michael M. Christovich shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

TRAYLOR, J., dissents and would not allow permanent resignation but would permanently disbar.

/s/ Bernette J. Johhnson

Justice, Supreme Court of Louisiana


text:
    In re Carl S. JOLIVETTE.
    No. 2004-OB-0949.
    Supreme Court of Louisiana.
    April 21, 2004.
   ON APPLICATION FOR ADMISSION TO THE BAR.

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Carl S. Jolivette, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Executive Director of the Lawyers Assistance Program. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

JOHNSON, VICTORY and TRAYLOR, JJ., dissent and would appoint a commissioner.


text:
    In re Edwin Jerome WILSON.
    No. 2004-B-0861.
    Supreme Court of Louisiana.
    April 21, 2004.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Edwin Jerome Wilson, and the Office of Disciplinary Counsel,

IT IS ORDERED that Edwin Jerome Wilson, Louisiana Bar Roll number 24253, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Pascal F. Calogero, Jr.

Justice, Supreme Court of Louisiana


text:
    In re William C. PASSMAN.
    No. 2004-B-0942.
    Supreme Court of Louisiana.
    April 21, 2004.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, William C. Passman, and the Office of Disciplinary Counsel,

IT IS ORDERED that William C. Pass-man, Louisiana Bar Roll number 21797, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Pascal F. Calogero, Jr.

Justice, Supreme Court o Louisiana


text:
    In re Jessie N. GROS, III.
    No. 2003-B-3076.
    Supreme Court of Louisiana.
    April 23, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from nine counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Jessie N. Gros, III, a disbarred attorney. For the reasons assigned, we now permanently disbar respondent from the practice of law in Louisiana.

PRIOR DISCIPLINARY HISTORY

In 1995, respondent was disbarred from the practice of law based on six counts of misconduct, which included misleading a client about the status of a matter, failing to respond to discovery resulting in the dismissal of a client’s suit, and commingling and converting client funds. In re: Gros, 95-0890 (La.9/15/95), 660 So.2d 434 (“Gros I”).

In April 1996, the ODC filed additional charges against respondent for neglecting to file a suit, failing to communicate with a client, and commingling and converting client funds. We concluded that such conduct warranted disbarment. Because respondent was already disbarred as a result of Gros I, we extended by five years the minimum period within which he could apply for readmission. In re: Gros, 97-1295 (La.9/24/97), 699 So.2d 384 (“Gros II”).

In July 1997, the ODC filed formal charges alleging that respondent neglected to file a suit, failed to communicate with a client, and commingled and converted client funds. We concluded that disbarment was appropriate considering respondent engaged in some of the most serious professional misconduct an attorney can commit, and there were no mitigating factors present. However, because the conduct subject of the 1997 formal charges occurred within the same time frame as Gros I and Gros II, we determined it was appropriate to add the additional violations to respondent’s record for consideration in the event he applied for readmission. In re: Gros, 98-0772 (La.3/15/02), 815 So.2d 799 (“Gros III”).

UNDERLYING FACTS

Counts I and II — The Porche Matter

Murphy Porche retained respondent to represent him in a personal injury matter. Respondent filed suit after prescription had run and the suit was dismissed as prescribed in 1989. Nevertheless, for a period of several years, respondent falsely informed his client that the suit was still pending. Mr. Porche’s family discovered the truth in 1996 and filed a complaint with the ODC concerning respondent’s conduct. Respondent failed to cooperate with the ODC in its investigation of the complaint.

Counts III and IV — The Knobloch Matter

In late 1993, James Knobloch, Jr. retained respondent to represent him in two separate legal matters. At the time respondent agreed to represent Mr. Knob-loch, he was ineligible to practice law due to his failure to comply with his mandatory continuing legal education (“MCLE”) requirements. Furthermore, respondent continued to handle Mr. Knobloch’s legal matters after he was disbarred in September 1995. In November 1995, respondent informed Mr. Knobloch that one of the matters would soon be settled. In August 1996, respondent advised Mr. Knobloch that his case would be or had been settled. To date, respondent has failed to provide Mr. Knobloch with any documentation verifying that a suit was even filed. Further, respondent has not provided Mr. Knobloch with any settlement documentation or funds. Finally, respondent failed to cooperate with the ODC in its investigation of the complaint filed against him by Mr. Knobloch.

Counts V. and VI — The Menendez Matter

In 1994, Diego Menendez retained respondent to represent him in a suit against the former First National Bank of Jefferson Parish. At the time respondent agreed to represent Mr. Menendez, he was ineligible to practice law due to his failure to comply with MCLE requirements. Furthermore, respondent continued to handle Mr. Menendez’s legal matter after he was disbarred in September 1995. Respondent gave false information to Mr. Menendez about the status of his case, advising that the suit was active and that the court would soon render a decision. In 1997, respondent ceased to communicate with Mr. Menendez entirely. Respondent has never furnished Mr. Menendez with any documentation confirming that he even filed suit nor has he furnished any settlement documents or funds. Further, respondent failed to provide Mr. Menen-dez with his file. Finally, respondent failed to cooperate with the ODC in its investigation of the complaint filed against him by Mr. Menendez.

Counts VII and VIII — The Henderson Matter

On November 1, 1992, respondent’s uncle, Edward Henderson, was killed in an automobile accident. Respondent approached Mr. Henderson’s family and offered to handle the wrongful death case as well as the estate without taking a fee. In late November and early December 1992, respondent received checks from South Farm Bureau Insurance totaling $25,500. Respondent forged the endorsements of Mr. Henderson’s family members and converted the funds to his own use. In 1993, respondent passed the act of sale for the family home and converted the proceeds of that transaction to his own use. To conceal his misconduct, respondent misled the decedent’s widow and children — his aunt and cousins — for a period of years. The Henderson heirs finally became aware of respondent’s misconduct in early 1999 and filed a complaint with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

Count IX — Respondent’s Conviction

On January 13, 1998, following his guilty plea in the United States District Court for the Eastern District of Louisiana, respondent was convicted of two felony counts of mail fraud. The conviction stemmed from respondent’s conversion of $230,000 in settlement funds belonging to eight clients. On February 2, 2000, respondent was sentenced to serve eighteen months in prison, followed by a three-year period of supervised release, and fined $4,000.

DISCIPLINARY PROCEEDINGS

On April 8, 2002, the ODC filed nine counts of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.1(b) (failure to comply with the mandatory continuing legal education requirements), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.8 (prohibited transactions between a lawyer and a client), 1.14 (client under a disability), 1.15 (safekeeping property of clients or third persons), 1.16(d) (termination of the representation), 3.4(a) (unlawfully obstructing another party’s access to evidence), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 5.5(a) (engaging in the unauthorized practice of law), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act 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), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation). The ODC further alleged that respondent’s knowing failure to respond to a lawful demand for information from a disciplinary authority constituted a violation of Supreme Court Rule XIX, § 9(c), and that he was convicted of a serious crime pursuant to Supreme Court Rule XIX, § 19(B).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. In its submission, the ODC recommended the imposition of permanent disbarment for respondent’s unauthorized practice of law and conviction of mail fraud, all of which occurred after his prior disbarments. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

Noting the factual allegations of the formal charges were deemed admitted pursuant to Supreme Court Rule XIX, § 11(E)(3), the hearing committee agreed that respondent violated the Rules of Professional Conduct as charged, except that the committee found respondent’s failure to cooperate with the ODC (specifically his failure to produce subpoenaed files and/or financial records during sworn statements) did not constitute dishonest or fraudulent conduct in violation of Rule 8.4(c). After reviewing the documentary evidence submitted by the ODC in response to the deemed admitted order, the committee concluded that the baseline sanction in this matter is disbarment. The committee found no mitigating factors are present but noted in aggravation that respondent has a prior history of similar disciplinary violations.

Relying on Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), the committee determined that since some of the misconduct at issue in this matter occurred during the same time period as the misconduct forming the basis for respondent’s previous disbarments, the discipline imposed should be determined as if all the proceedings were before the court simultaneously. Therefore, the committee did not consider permanent disbarment, but instead recommended that another disbarment be added to respondent’s record for consideration in the event he should ever apply for readmission after becoming eligible to do so.

The ODC filed an objection to the hearing committee’s failure to recommend permanent disbarment.

Disciplinary Board Recommendation

The disciplinary board found the hearing committee’s factual findings are not manifestly erroneous, and that the committee correctly applied the Rules of Professional Conduct. The board found the following aggravating factors are supported by the record: prior disciplinary offenses; dishonest or selfish motive; pattern of misconduct; multiple offenses; failure to comply with the rules or orders of the disciplinary agency; vulnerability of the victims; substantial experience in the practice of law (admitted 1981); indifference to making restitution; and criminal conduct. The board agreed with the committee’s determination that the record does not support a finding of any mitigating factors.

The board found that respondent intentionally violated duties owed to his clients, the public, the legal system, and the profession, causing actual injury. Respondent allowed Mr. Porche’s personal injury claim to prescribe and misled him for years about the status of the matter. He agreed to represent Mr. Knobloch and Mr. Men-endez during periods of ineligibility and misled both of them about the status of their suits. He converted funds in the two matters he was handling for the Henderson family. He failed to cooperate with the ODC’s investigation of the complaints, causing undue cost and burden to the disciplinary system. His criminal conviction has also harmed the reputation of the legal community.

The board agreed with the hearing committee that some of the misconduct at issue in this proceeding occurred during the same time period as the misconduct forming the basis of respondent’s previous disbarments. However, the board noted that the misconduct alleged in Counts.II, IV, VI and VIII (failure to cooperate with the ODC in its investigations), Count V (involving the unauthorized practice of law), and Count IX (respondent’s conviction) occurred after the time frame of the misconduct forming the basis of the prior disbarments.

The board reviewed this court’s .guidelines for permanent disbarment and concluded respondent’s conduct fell within at least two of the guidelines. In | particular, it found respondent engaged in the practice of law in the Menendez and Knobloch matters after his 1995 disbarment in Gros I, conduct which fell under Guideline 8. Further, he pled guilty to mail fraud, a felony which reflects upon his moral fitness to practice law, following the 1997 extension of that disbarment in Gros II, conduct which fell under Guideline 9. Under these circumstances, the board recommended that respondent be permanently disbarred.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation.

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).

The deemed admitted facts in this case support a finding of professional misconduct that is unquestionably serious in nature. Respondent engaged in the unauthorized practice of law after being disbarred by this court and, in fact, did so on more than one occasion and in more than one client matter. Furthermore, respondent has been convicted of a serious felony offense in connection with his conversion of $230,000 in settlement funds belonging to some eight different clients. No less'serious is respondent’s failure to cooperate in the numerous disciplinary investigations conducted by the ODC.

Having found professional misconduct, we now turn to a determination of the appropriate sanction. In doing so, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). 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).

As a threshold matter, we recognize that some of respondent’s misconduct in the instant matter occurred during the same general time as the misconduct at issue in Gros I, Gros II and Gros III. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we observed that it is generally inappropriate to discipline an attorney a second time for misconduct that occurred before or concurrently with the misconduct at issue in a prior disciplinary proceeding. Nonetheless, we find that the most serious misconduct in this case, including respondent’s unauthorized practice of law, his guilty plea to two counts of felony mail fraud, and his failure to cooperate with the ODC in its investigations, occurred after the time frame at issue in the prior proceedings. Under such circumstances, we decline to employ the Cha-telain approach.

The sheer magnitude of respondent’s misconduct requires, this court to consider whether permanent disbarment is warranted. In Appendix E to the Rules of Lawyer Disciplinary Enforcement, we have set forth several guidelines illustrating the types of cases which might warrant permanent disbarment. These guidelines were not intended to bind this court in its decisionmaking, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.” We find respondent’s conduct in the matters at issue falls squarely within Guidelines 8 and 9, which provide for permanent disbarment under the following circumstances:

GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

We do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, 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. Respondent’s actions in the instant matter, combined with his extensive prior disciplinary record, convincingly demonstrate he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

Accordingly,' we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Jessie N. Gros, III, Louisiana Bar Roll No. 6352, be permanently disbarred. 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.

      . In addition to the three proceedings in this court, respondent was also admonished by the disciplinary board on eight occasions between 1990 and 1995 for failing to cooperate with the ODC in its investigations.


author: CALOGERO, Chief Justice.

text:
    STATE of Louisiana v. Ardis ALLEN.
    No. 2003-KK-2815.
    Supreme Court of Louisiana.
    April 23, 2004.

      Charles C. Fonti, Jr., Attorney General, John Marvin, District Attorney, Jeffrey S. Cox, Patrick R. Jackson, for applicant.
    Darren C. Giles, for respondent.
   CALOGERO, Chief Justice.

We granted this writ application filed by the State of Louisiana to determine whether the two-year time limit for commencing trial' in non-capital felony cases set by La. Code Crim. Proc. art. 578 is interrupted pursuant to La.Code Crim. Proc. art. 579, suspended pursuant to La.Code Crim. Proc. art. 580, or neither interrupted nor suspended, when the defendant pleads guilty in accord with a plea agreement negotiated with the State and that guilty plea is later set aside.

For the reasons set forth below, we conclude thát the guilty plea under the circumstances of this case suspended the running of the time period for commencing trial. Therefore, under Article 580, the State had the remainder of the two-year time limit set forth in Article 578, but no less than one year, from the date this court’s judgment vacating the guilty plea became final, in which to commence trial.

FACTS AND PROCEDURAL HISTORY

The charges against the defendant arose out of an incident in September of 1996 at a small grocery store in Haughton, Louisiana. The defendant and his stepbrother, Russell Jason Allen, arrived at the store in Russell’s truck. Russell remained in the truck while the defendant entered the store armed with a gun. When the defendant demanded money and threatened to kill the two store employees, one of them pulled her gun and shot the defendant in the upper torso. The defendant shot his gun several times, striking that employee in the arm and causing a flesh wound. The defendant was rendered a paraplegic by his injury.

The defendant and his stepbrother were charged together in two bills of information with two counts of attempted armed robbery and two counts of attempted first degree murder. Both bills of information were filed on December 13, 1996.

The defendant’s stepbrother had previously been charged in a third bill of information with being an accessory after the fact to armed robbery. This charge was made on the basis that Russell had allegedly dragged the injured defendant from the scene, transported him back to their hometown of Benton, cleaned blood from his truck, put blood in the defendant’s car, hid the gun, and initially lied to police about the incident when they arrived at the family’s mobile home. Russell, when confronted with facts that did not correspond with his story, confessed his and the defendant’s involvement in the armed robbery and shooting at the store. The defendant later confessed at the hospital to his involvement in the crime.

On April 8, 1997, less than four months after he was charged, the defendant entered a plea of guilty to one count of attempted first degree murder. Pursuant to the plea agreement negotiated between the defendant’s counsel and the prosecution, the State dismissed the two attempted armed robbery counts and the remaining attempted first degree murder count in exchange for the defendant’s guilty plea, a “straight” sentence of thirty years at hard labor, and the defendant’s promise to testify against his stepbrother on behalf of the State.

In June of 1997, the defendant obtained a copy of the transcript of his guilty plea colloquy. On February 24, 1998, he filed an application for post-conviction relief challenging the validity of his guilty plea. After years of litigation, the defendant obtained relief on May 11, 2001, when this court granted his writ application and vacated the guilty plea on the basis that the defendant had entered his plea of guilty in reliance upon the district court’s promise to impose a sentence rendered illegally lenient by design because it omitted any restriction on the availability of parole, a sentence relator 'could not by law serve as imposed. State ex rel. Allen v. State, 00-0220 (La.5/11/01), 792 So.2d 1. This court remanded the matter to the district court “to give relator' the opportunity to plead anew and proceed to trial if he chooses not to plead guilty.” Id.

The court’s order vacating the guilty plea became final on May 25, 2001, when the State did not seek a rehearing within the time period set forth in La. Sup.Ct. Rule IX, § 1. Approximately thirteen months later on June 27, 2002, the defendant pro se filed a motion to quash the bill of information and to be released from custody, asserting the State had failed to commence trial against him within one year of the finality of this court’s decision as required by La.Code Crim. Proc. art. 582. The district court on August 26, 2002, denied the motion to quash, concluding the State has two years from May 25, 2002, in which to proceed.

The court of appeal, after several refusals to entertain the defendant’s writ application, eventually granted the writ and made it peremptory. The court of appeal, in an unpublished order, found the district court had erred in denying the motion to quash, and reversed. 38,081 (La.App. 2 Cir. 9/18/03). This court granted the State’s writ application to review that decision. State v. Allen, 03-2815 (La.11/7/03), 857 So.2d 507.

DISCUSSION

Chapter 2 of Title XVII of the Code of Criminal Procedure governs the time limitations upon trial of the accused. For the non-capital felonies with which the defendant has been charged in the instant case, the State had two years from the institution of prosecution to commence trial. La. Code Crim. Proc. art. 578(2). As set forth in Note 1, the Code of Criminal Procedure identifies the specific circumstances when this time limitation may be interrupted, La.Code Crim. Proc. art. 579, or suspended, La.Code Crim. Proc. art. 580. Article 582 of the Code of Criminal Procedure governs the time limitation for commencing a new trial when the defendant “obtains a new trial or there is a mistrial... La.Code Crim.' Proc. art. 582. In those circumstances, “the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is granted, or within the period established by Article 578, whichever is greater.”

The question before the court is: what effect did the defendant’s guilty plea have upon the running of the time limitation set forth in Article 578? The defendant is seeking to have the charges against him quashed because, he asserts, the State failed to commence trial within one year as required by Article 582 after his guilty plea was set aside by this court. Implicit in the defendant’s argument is the assumption that the guilty plea is equivalent to a trial and thus does not interrupt or suspend the running of the time limitation of Article 578 for commencing trial, such that the two-year time period had expired and the State had only one year from the date of the finality of this court’s judgment in which to commence trial. The State asserted in the district court that Article 582, which applies to a new trial after a defendant has been tried and the conviction has been reversed on appeal, or a mistrial has been declared, is not applicable in this ease, because the defendant was not tried; he pleaded guilty.

Turning first to whether Article 582 applies to the facts of this case, we conclude that Article 582 does not so apply. By its own language, Article 582 presumes either that the defendant has been tried and a new trial has been granted (whether by an appellate court or the district court), or that the trial against the defendant was commenced and a mistrial was declared. In either case, “the second trial” must commence within one year from the date the new trial is granted' or the mistrial ordered, or within the time period set forth in Article 578, whichever is greater. La.Code Crim. Proc. art. 582. Article 582, therefore, applies only when a trial has commenced and either it was completed or a mistrial ended it prematurely. A guilty plea, while it results in a conviction, is not a trial, such that the defendant does not obtain a “new” trial if the guilty plea is vacated. Instead, the defendant is merely allowed to plead anew and the State may then proceed to trial if the defendant" pleads not guilty, as we acknowledged he might in our order vacating the defendant’s guilty plea.

We agree with the reasoning of the Louisiana Fourth Circuit in State v. Barksdale, 459 So.2d 554, 555 (La.App. 4th Cir.1984), a case directly on point that held Article 582 does not apply when the defendant pleads guilty and is later granted permission to withdraw his guilty plea. In Barksdale, the defendant pleaded guilty barely one month after the bill of information was filed, but some nine years later he was allowed to withdraw that plea. Over one year after that order, the defendant filed a motion to quash asserting the State had failed to commence trial within one year. The court of appeal declined to apply Article 582, reasoning that the situation did not involve a new trial or mistrial; instead, the defendant’s case had been closed by the State shortly after prosecution was instituted, and was revived nearly nine years later. In the instant case, too, there is no new or mistrial situation; thus, Article 582 governing the effect of the ordering of a new trial on the time limitation for commencing a second trial does not apply.

Because we decline to equate a guilty plea with a trial for purposes of the speedy trial statutes, the issue remains whether the guilty plea serves either to interrupt or to suspend the running of the time limitation set forth in Article 578 for commencing trial. Though the State in its argument to the district court used the word “interrupts,” it actually asserted that the running of the twenty-four-month time period in Article 578 was effectively suspended when the defendant entered his plea of guilty four months after the bill of information was filed. The State argued in the district court that it therefore had the remainder of that time, or some twenty months, from the date this court’s decision became final in which to commence trial. The district court, however, concluded that the two-year time period of Article 578 began to run anew when this court’s decision to vacate the guilty plea became final; thus, the district court implicitly found that the guilty plea interrupted the running of the time limitation, allowing the State another twenty-four months in which to commence trial.

The court of appeal, however, ruled for the defendant and reversed the district court’s ruling denying the motion to quash, concluding that the State had one year from May 25, 2001, in which to commence trial and that it had failed to do so. The appellate court rejected the State’s argument that the “trial, appeal, and subsequent [post-conviction relief] applications interrupted” the time period of Article 578. We note, however, that the defendant was not tried, and there was no direct appeal, so the reasoning of the court of appeal seems erroneous. Furthermore, the court of appeal cited State v. Harris, 29,574 (La.App. 2 Cir. 5/7/97), 694 So.2d 626, which held that a conviction and the defendant’s subsequent efforts to overturn it on direct appeal neither suspend nor interrupt the running of the time limitation of Article 578. The Harris case is inapposite, however, because the defendant there had been tried by a jury and convicted of manslaughter before he successfully overturned the conviction on appeal.

Nonetheless, the question before us remains to be answered, that is, what effect did the defendant’s guilty plea, entered just four months after institution of prosecution, have upon the time limitation for commencing trial set forth in Article 578? After our review of the law and the circumstances of this case, we find merit to the State’s argument, as advanced in the district court, that the guilty plea effectively suspended the running of the Article 578 time limitation, such that the district court’s ruling denying the motion to quash was correct, and thus the court of appeal erred in reversing that ruling.

The guilty plea in this case did not serve to interrupt the Article 578 time limitation for commencing trial pursuant to Article 579(A). While in general a guilty plea is a voluntary plea by the defendant and has the effect of preventing the defendant from being tried, the guilty plea here did not result from a “cause beyond the control of the state.” La.Code Crim. Proc. art. 579(A)(2). The State participated in the plea negotiations and, in exchange for the defendant’s guilty plea and the promise of his testimony against his co-defendant, entered a nol prosequi for two counts of attempted armed robbery and one count of attempted first degree murder. Thus, the defendant’s guilty plea under the circumstances of this case was not a cause beyond the control of the State that served to prevent it from bringing the defendant to trial.

Instead, we hold that the defendant’s guilty plea suspended the running of the Article 578 time limitation for commencing trial in the manner that “a motion to quash or other preliminary plea” would do pursuant to Article 580. For purposes of Article 580, a preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial. State v. Brooks, 02-0792, p. 6 (La.2/14/03), 838 So.2d 778, 782; State v. Cranmer, 306 So.2d 698, 700 (La.1975); State v. Elfert, 247 La. 1047, 175 So.2d 826, 828 (1965). Such pleadings, we have found, include properly 19filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Brooks, 02-0792, p. 6, 838 So.2d at 782; State v. Brooks, 505 So.2d 714, 725 (La.1987); State v. Fabacher, 362 So.2d 555, 556 (La.1978). The defendant’s guilty plea, in our view, effectively served to “delay,” forego, or continue the trial, when later the defendant succeeded in being allowed to withdraw his plea of guilty and to plead anew.

Our holding is supported by the analysis of the Louisiana Fourth Circuit in Barksdale, which, as noted above, was confronted with the same question before this court today. The Barksdale court reasoned that, since the defendant had made the prosecution unnecessary by his guilty plea, the State was relieved of its obligation to bring the defendant to trial at that time. When that plea of guilty was ordered withdrawn, the court of appeal reasoned, “the obligation to prosecute was reimposed on the state but to the same extent and under the same conditions as were in effect before he pled guilty.” 459 So.2d at 554. The court concluded that, when the guilty plea was ordered withdrawn, the State had two years under Article 578(2) to commence trial less the thirty-four days that had elapsed between the institution of prosecution and the defendant’s guilty plea. Id. Thus, the Barksdale court implicitly found that the guilty plea had suspended the running of the Article 578 time limitation in the manner of a preliminary plea under Article 580.

The Colorado Supreme Court, confronted with the effect of a guilty plea on speedy trial statutes, was more specific, but its reasoning in a seminal case also supports our holding today. In People v. Madsen, 707 P.2d 344, 346 (Colo.1985), the court found that the period between the acceptance and withdrawal of the guilty plea is appropriately viewed as both (1) a continuance requested by the defendant, thus the time for commencing trial was tolled during the interregnum, and (2) a delay at the defendant’s instance, thus the time for commencing trial began to run anew when the plea was allowed to be withdrawn. The Colorado Supreme Court in Madsen reasoned that a guilty plea is “within the defendant’s control and may be used to halt the progress of the prosecution at the behest of the defendant....” Id. There, the defendant pleaded guilty after a trial date had been scheduled and was subsequently permitted to withdraw his plea because the trial court rejected the parties’ sentencing agreement that the defendant be placed on probation. Trial was again set, and prior to commencement of trial, the defendant moved to dismiss the charges against him for the reason that the state had failed to bring him to trial within six months, as provided by statute. The Colorado Supreme Court, citing the Louisiana Fourth Circuit’s Barksdale case and Davis v. State, 386 So.2d 1287 (Fla.App.1980), observed that “a plea of nolo contendere ends the obligation of the prosecutor and the court to bring the defendant to trial.” Id. The Colorado court reasoned:

Therefore, neither the prosecutor nor the court will take any further steps to ensure that the defendant is brought speedily to trial. If the period between the plea and the withdrawal of the plea were counted as part of the speedy trial period, the defendant could enter a plea near the end of his speedy trial period, wait for the period to run, and then obtain the consent of the trial court to withdraw his plea, resulting in a dismissal of the charges against him.

Madsen, 707 P.2d at 346 (citations omitted).

CONCLUSION

We find the defendant’s guilty plea, which was later ordered set aside by this court, suspended pursuant to La.Code Crim. Proc. art. 580 the running of the time limitation for commencing trial set forth in La.Code Crim. Proc. art. 578(2). The defendant’s guilty plea effectively served to continue or delay his trial and to relieve the State, at least until the guilty plea was later allowed to be withdrawn, of its lnobligation to bring the defendant to trial within two years of the institution of prosecution. Therefore, the two-year time limitation was suspended when the defendant entered his plea of guilty on April 8, 1997, and commenced to run again on May 25, 2001, when this court’s order setting aside the guilty plea became final. From the date of finality, the State had the remainder of the twenty-four-month time period in which to commence trial, minus the approximately three and one-half to four months that had elapsed between the institution of prosecution on December 13, 1996, and the entry of the defendant’s guilty plea on April 8, 1997. Accordingly, when the defendant filed his motion to quash on June 27, 2002, the time limitation of Article 578(2) had not expired and the State had some seven months of the two-year period remaining in which to commence trial. The district court, consequently, did not err in denying the defendant’s motion to quash. The court of appeal judgment is therefore reversed, and the matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

       Judge Fred C. Sexton, retired, sitting ad hoc for Associate Justice Chet D. Traylor, recused.

      . With respect to non-capital felonies, La. Code Crim. Proc. art. 578(2) provides that the trial shall be commenced within two years of the date of institution of the prosecution.

      . La.Code Crim. Proc. art. 579(A) provides that the time limitation set forth in Article 578 may be interrupted under the following circumstances:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
      (3)The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
      Article 579(B) further provides that the time limitation of Article 578 will "commence to run anew from the date the cause of interruption no longer exists."

      . La.Code Crim. Proc. art. 580 provides that, "[w]hen a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon...." Article 580 further provides that the State shall have "no less than one year after the ruling to commence the trial.”

      . La.Code Crim. Proc. art. 582 provides that, "[w]hen a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.”

      . The State in argument before this court does not make the same argument it made in the district court, and it skirts the issue of whether the guilty plea interrupts or suspends the time limit of Article 578. In its brief, the State primarily asserts that this court in 2001 wrongly vacated the defendant's guilty plea and sentence, and thus invites this court to reconsider that ruling. However, our order of May 11, 2001, became final on May 25, 2001, when the State chose not to ask for a rehearing, and the principles of res judicata bar what amounts to a collateral attack on the order over two years after the court issued it.
      Also without support is the State's alternative contention, advanced for the first time at oral argument, that the prescriptive period was already suspended when the defendant entered his guilty plea because he had previously moved for discovery on January 2, 1997. According to the record, however, that motion was filed by the co-defendant. The defendant's counsel did file a motion on his behalf on January 9, 1997, but the district court, according to the case minutes, on January 22 and January 27, 1997, respectively deemed discovery and inspection to be satisfied as to the co-defendant and the defendant. Because the court had ruled on the discovery motions, the time period was no longer suspended when the defendant entered his plea of guilty on April 8, 19.97.


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    In re Val K. SCHEURICH, III.
    No. 2003-B-3264.
    Supreme Court of Louisiana.
    April 30, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Val K. Scheurich, III, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

Count I

Between September 1, 1994 and October 31, 2000, respondent commingled his own funds with client funds in his trust account and converted at least $14,985.84 in client funds to his own use. According to an audit report prepared by Ronald White, respondent occasionally used his trust account to pay operating expenses. Respondent also used the trust account to pay expenses for a business he eventually incorporated and for a business that belonged to his wife. Respondent also misused the trust account by withdrawing funds as an “advance” fee, paying expenses on cases prior to depositing the settlement funds, leaving a portion of his fee in the account, or withdrawing a larger fee than that to which he was entitled.

The audit also revealed that respondent often failed to pay third party expenses which were listed on client settlement sheets. In some instances, respondent made late payments to third parties, ranging from one to six years after receiving the settlement funds.

Count II

In 1997, respondent paid a non-lawyer, Larry Harris, the sum of $550 for referring a personal injury case to him.

DISCIPLINARY PROCEEDINGS

On December 17, 2001, the ODC filed two counts of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.15 (safekeeping property of clients or third persons), 7.2(d) (a lawyer shall not give anything of value to a person for recommending the lawyer’s services), 8.1(a) (knowingly making a false statement of material fact), 8.4(a) (violation of 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).

Respondent answered the formal charges and did not deny any of the allegations. The matter then proceeded to a formal hearing, which was conducted by the hearing committee on April 15, 2002. The record was held open to receive evidence relating to restitution, which respondent subsequently submitted without objection.

Hearing Committee Recommendation

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

1.Respondent converted $14,985.84 in client funds but has since made restitution.

2. Respondent paid a non-lawyer $550 for referring a case to him.

3. There is no evidence that respondent’s clients suffered any financial loss due to his conduct.

Based on these factual findings, the committee determined that respondent violated the following Rules of Professional Conduct:

1. Rules 1.3 and 1.15 by failing to promptly pay healthcare providers after receiving settlement funds. The committee noted that nearly $13,000.00 in payments were outstanding at the time of the hearing, and questioned whether respondent would have paid these sums absent disciplinary action.

2. Rule 7.2(d) for paying $550.00 to a non-lawyer as a referral fee.

3. Rule 8.4(a) for violating the Rules of Professional Conduct.

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 concluded that the baseline sanction for respondent’s misconduct is a suspension from the practice of law. The committee found no aggravating or mitigating factors are present. Citing Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), the committee recommended that respondent be suspended for three years.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board generally accepted the hearing committee’s factual findings and application of the Rules of Professional Conduct. In addition, the board found that respondent engaged in conduct prejudicial to the administration of justice, a violation of Rule 8.4(d), when he paid a referral fee to a non-lawyer. The board concluded the remainder of the rule violations alleged in the formal charges are not supported by the record.

The board found that respondent knowingly violated duties owed to his clients and to the profession. Respondent has admitted that he converted to his own use more than $14,000 in funds withheld to pay third-party medical providers for services rendered to his clients. Although respondent paid all outstanding amounts to the medical providers after institution of these proceedings, his clients were exposed to the danger of being required to pay the providers for the unsatisfied balances on their accounts. Furthermore, respondent’s payment of a referral fee to a non-lawyer caused harm to the profession, the legal system, and the public.

In aggravation, the board recognized a pattern of misconduct. The board found the following mitigating factors are supported by the record: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

Considering the Hinrichs guidelines, the board concluded that respondent’s misconduct falls within the category of a three-year suspension. Respondent’s actions rise above the threshold level of a “high degree of negligence,” but respondent did not commit other fraudulent acts in connection with his conversion and there is no indication that his clients were greatly harmed. Additionally, respondent paid all outstanding balances due to the third-party medical providers without the necessity of extensive disciplinary or legal proceedings.

Based on this reasoning, the board adopted the committee’s recommendation that respondent be suspended from the practice of law for three years. The board further recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

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 record supports the factual findings of the hearing committee, as modified by the disciplinary board. Respondent misused his client trust account, commingled personal and client funds, and paid a referral fee to a non-lawyer. Respondent also failed to timely pay third-party medical providers and instead converted those funds to his own use.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). 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).

Respondent’s misconduct is clearly serious in nature, with the most egregious violation being his conversion of funds owed to various medical providers. In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), we set forth guidelines for imposing discipline in a conversion case:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made, [citations omitted]

Applying these guidelines to the instant case, we find applicable the factors contained in the range of a three-year suspension. Respondent acted improperly in his treatment of his clients’ funds, but no other fraudulent acts were committed in connection with the conversion. Respondent benefitted from the infraction because he used the funds in his trust account to pay his office and other personal expenses. There was some harm to respondent’s clients as well as the third-party medical providers, as they were deprived of their funds for a period of time. However, the harm was not great, and respondent ultimately made full restitution. Under these circumstances, the three-year suspension recommended by the disciplinary board is appropriate.

Accordingly, we will accept the disciplinary board’s recommendation of discipline.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Valentine Kropp Scheurich, III, Louisiana Bar Roll number 11769, be suspended from the practice of law in Louisiana for a period of three years. It is further ordered 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.

      . Regarding respondent's payment .of outstanding bills to third-party medical providers, the committee reasoned that this restitution appeared either forced or compelled and . therefore was neither an aggravating nor mitigating circumstance. ,

        . The ODC did not file an objection in this court to the board's recommendation, and therefore the dismissal of these charges will not be discussed further.


text:
    Gary L. RING v. STATE of Louisiana, et al.
    No. 2004-CA-0671.
    Supreme Court of Louisiana.
    April 30, 2004.
    Charles C. Foti, Jr., Attorney General, Berrigan, Litchfield, Schonekas, Mann, Triana & Thompson, New Orleans, James J. Bolner, Jr., Keith M. Detweiler, Special Assistant Attorneys General, for appellant.
    Amato & Creely, Robert G. Creely, Gretna, Nathan M. Bandaries, Keith A. Goodwin, for appellee.
   PER CURIAM.

Gary Ring, an Illinois resident, filed the instant suit against the State of Louisiana (“State”), arguing that La. R.S. 32:389 was unconstitutional, on the ground the statute deprived non-resident truck drivers of a substantive property right and liberty interest by requiring them to pay fines “on the spot” or face impoundment of their vehicles. The district court granted partial summary judgment in favor of Mr. Ring and found La. R.S. 32:389 unconstitutional. The State appealed that judgment to this court. In Ring v. State, Dept. of Transp. and Development, 02-1367 (La.1/14/03), 835 So.2d 423 {“Ring I”), we vacated as premature the judgment of the district court which declared La. R.S. 32:389 unconstitutional. We remanded the case to the district court to resolve pending exceptions filed by the State of Louisiana, including an exception of prescription, in which the State argued Mr. Ring did not file his suit within ninety days of payment of the assessed penalty as required by La. R.S. 32:389(C)(4)(a).

On remand, the district court denied the State’s exception, finding La. R.S. 32:389(C)(4)(a) was “unreasonable.” The State appealed this ruling in this court. In Ring v. State, Dept. of Transp. and Development, 03-1772 (La.6/27/03), 847 So.2d 1281 (“Ring II”), we determined the appellate jurisdiction of this court was not invoked and therefore remanded the case to the court of appeal. On remand, the court of appeal ordered the district court to make “a specific finding” as to whether La. R.S. 32:389(C)(4)(a) was unconstitutional. Pursuant to the court of appeal’s directions, the district court, without the benefit of briefing and argument by the parties, declared the statute unconstitutional. Pursuant to La. Const. art. V, § 5(D), the State of Louisiana invokes the appellate jurisdiction of this court to review this judgment.

Based on our review of the record, we find the district court has not passed on the merits of the exception of prescription, as we directed in our opinion in Ring I. Under these circumstances, it was premature for the district court to reach the constitutionality of La. R.S. 32:389(C)(4)(a). Accordingly, we must vacate the district court’s judgment and remand the case to the district court to determine the merits of the State’s exception of prescription and other pending exceptions, as directed in our opinion in Ring I.

DECREE

For the reasons assigned, the judgment of the district court declaring La. R.S. 32:389(C)(4)(a) unconstitutional is vacated and set aside. The case is remanded to the district court for further proceedings consistent with this opinion.

      . Although the district court purportedly denied the State's exception, it is obvious from the record that the district court did not address the merits of the exception and instead went directly to the constitutional issue.

      . In the event the prescription issue is decided adversely to Mr. Ring, it may be appropriate for Mr. Ring to raise the constitutionality of the statute at that time.