text:
    STATE of Louisiana v. Michael HUGHES.
    No. 2002-KK-2455.
    Supreme Court of Louisiana.
    Jan. 31, 2003.
   JjPER CURIAM.

We grant the state’s mid-trial writ application to consider the ruling of the trial court that respondent may present the testimony of a psychologist and expert in the area of child sexual abuse for purposes of establishing that he does not have the psychology of a child sexual predator and that nothing in his sexual or psychological makeup appears consistent with the allegations of sexual abuse in the present case. For the reasons that follow, we conclude that respondent may not present opinion testimony of this nature to establish it is likely he would not commit the charged acts and to bolster his defense that the allegations made against him by the victim, and other witnesses called by the state to establish other incidents of sexual abuse, are false.

The state charged respondent in a three-count bill of information with aggravated rape, aggravated oral sexual battery, and molestation of a juvenile, in violation of La.R.S. 14:42, 14:43.4 (subsequently repealed) and 14:81.2, respectively. The charged acts all involved respondent’s stepdaughter and |2allegedly took place over a four-year period of time in Louisiana and Florida. Respondent waived a jury and at trial before the court alone the state called not only the victim in the present case but also her two stepsisters, who testified that they, too, had been abused by respondent. The state introduced the testimony regarding other uncharged acts of child sexual abuse allegedly committed by respondent under the authority of newly-enacted La.C.E. art. 412.2(A), see 2001 La. Acts 1130, which provides that at trial of a sex crime committed against a victim under the age of 17 years, “evidence of the accused’s commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant .... ”

After the state rested, the trial court granted respondent’s motion for a directed verdict on the count charging aggravated oral sexual battery. As to the remaining charges, respondent called to the stand, among other witnesses, Dr. Edward Shwery, a clinical psychologist and an expert in the sexual abuse of children, in support of his defense that the charges made by the victim and her sisters were false and “completely out of character” for him. On the latter point, the defense sought to counter the state’s evidence of his “lustful disposition” towards children, as revealed by the testimony of the victim and her stepsisters, with Dr. Shwery’s personal and professional opinion, based on his extended interview with respondent in the week before trial, and on the results of several standardized psychological tests administered as part of that process, that respondent is “very moralistic” and that nothing in his psychological makeup or history classified him as a sexual predator or appeared consistent with the allegations of sexual abuse made in the present case. “If they can introduce | ^evidence of lustful disposition,” defense counsel argued, “we can introduce evidence of no lustful disposition.”

The state objected to any testimony regarding respondent’s mental status on grounds that respondent had not entered a dual plea of not guilty and not guilty by reason of insanity and had not provided disclosure of the psychologist’s findings and notice of a defense based upon mental condition as a matter of the discovery provisions in La.C.Cr.P. art. 725 and 726. The trial court overruled the objections, reasoning that the defense was “not introducing evidence of a mental defect. In fact, it’s just the opposite.” At the close of Dr. Shwery’s testimony, the court recessed trial and thereby provided the state with an opportunity to seek review of its ruling as to the admissibility of the psychologist’s opinion regarding the defendant’s moral character and non-pedophiliac sexual disposition. The First Circuit subsequently denied the state’s application without comment. State v. Hughes, 02-1804 (La.App. 1st Cir.9/23/02).

We agree with the trial court that an accused in Louisiana is not required to enter an insanity plea, or to provide notice of a defense based on a mental condition, to introduce evidence, assuming that it is otherwise admissible, to establish that he or she is a sane and normal human being with non-deviant sexual predispositions. Cf. La.C.Cr.P. art. 651 (“When a defendant is tried upon a plea of ‘not guilty,’ evidence of insanity or mental defect at the time of the offense shall not be admissible.”); State v. Lecompte, 371 So.2d 239, 243 (La.1979)(“Under this statute, evidence of a mental condition or defect is inadmissible when the defendant failed to plead not guilty and not guilty by reason of insanity. Moreover, a mental defect or disorder short of insanity cannot serve to negate specific intent and reduce the degree of the crime.”). In the present case, respondent’s defense is | ¿simply that the victim and her sisters are lying, as demonstrated in part by his lack of a mental defect, disease, or condition manifesting itself in sexual psychopathy.

However, we disagree with the trial court that Dr. Shwery’s opinion is admissible on the question of respondent’s guilt or innocence. In State v. Dawson, 392 So.2d 445, 447 (La.1980), this Court suggested, in dicta, that “[gjiven the proper foundation, an expert witness might state whether a defendant has the psychological capacity to commit a particular crime.” The proposed testimony in Daw son, properly excluded on other grounds, purported to establish that the defendant lacked the capacity “to obtain sexual gratification through the use of force, violence, or threats, a pertinent character trait in a prosecution for rape.” Id., 392 So.2d at 447. However, since Dawson, the overwhelming weight of recent authority in other state jurisdictions considering the question of whether the accused may present expert testimony that he is psychologically unlikely to commit the charged offense has been to exclude expert evidence offered by the defendant in cases of child sexual abuse to establish that he does not fit the profile of a sexual predator or pedophile, or that his responses to standardized psychological tests failed to disclose any underlying sexual pathology or sexual de-vianey that might explain sexual abuse of children. See, e.g., R.D. v. State, 706 So.2d 770, 776 (Ala.Crim.App.1997); State v. Person, 20 Conn.App. 115, 564 A.2d 626, 631-32 (1989); State v. Floray, 715 A.2d 855, 857-61 (Del.Super.1997); State v. Parkinson, 128 Idaho 29, 909 P.2d 647, 652-53 (1996); In Re B.J., 316 Ill.App.3d 193, 249 Ill.Dec. 233, 735 N.E.2d 1058 (2000); State v. Price, 43 P.3d 870, 877-78 (Kan.App.2002); Tungate v. Commonwealth, 901 S.W.2d 41 42-43 (Ky.1995); Earnest v. State, 805 So.2d 599, 606 (Miss.App.2002). The decisions reflect a variety of rationales for excluding the evidence, among them the | Jack of a recognized scientific basis for drawing a nexus between test results or profile scores and actual conduct, Floray, 715 A.2d at 860-61; Parkinson, 909 P.2d at 651-52; Tungate, 901 S.W.2d at 43; Earnest, 805 So.2d at 606, the risk that the evidence might usurp the jury’s province to determine the credibility of witnesses and guilt or innocence of the defendant, Floray, 715 A.2d at 855; Price, 43 P.3d at 878-79, and the tendency of the evidence to place before jurors opinion as to the accused’s character in violation of state evidentiary rules. R.D. v. State, 706 So.2d at 775; Floray, 715 A.2d at 859-60; In Re B.J., 249 Ill.Dec. 233, 735 N.E.2d at 1065-66. At least one reported court of appeal decision in Louisiana joined this trend. See State v. Armstrong, 587 So.2d 168 (La.App. 4th Cir.1991) (psychologist’s opinion that the defendant did not have the psychological dynamics of a child sexual abuser properly excluded as a prohibited comment on the guilt or innocence of the accused). California stands as a notable exception to the overwhelming majority rule on this point, although its jurisprudential rule permitting expert evidence regarding the defendant’s lack of sexual deviance, see People v. Jones, 42 Cal.2d 219, 266 P.2d 38 (1954), has been codified into statutory law. Cal. Evid. Code, § 1102 (West 1995) (permitting evidence of an accused’s good character or a trait of character “in the form of an opinion or evidence of his reputation .... ”). See People v. Stoll, 49 Cal. 3d 1136, 265 Cal.Rptr. 111, 783 P.2d 698 (1989).

This body of jurisprudence gives rise to considerable misgivings in this Court -about the reliability and therefore admissibility of expert opinion regarding a defendant’s lack of predisposition towards pedophilia as substantive evidence relevant to the question in a criminal trial of whether he or she sexually abused a child. See 1 John E.B. Myers, Evidence in Child Abuse and Neglect Cases, § 5.53, p. 578 (3rd ed. 1997)(“It is important to emphasize ... that there is no | (¡psychological test or combination of tests that reliably determines whether a person has or will engage in deviant sexual behavior .... Research confirms the fact that many sex offenders have no pathology discernible by generic psychological tests of clinical interview.”) (internal quotation marks and footnotes omitted).

However, for present purposes, we need look no further for guidance than the traditional rules in Louisiana governing the defendant’s right to present evidence of his good character as relevant substantive evidence bearing on the question of his guilt or innocence. A defendant in Louisiana may present evidence “of a pertinent trait of his character, such as a moral quality ... pertinent to the crime with which he is charged ...,” although such evidence “cannot destroy conclusive evidence of guilt.” La.C.E. art. 404(A)(1). The Code of Evidence makes no change in the law. See former R.S. 15:480 (“Evidence of the good character of accused is always admissible in his behalf ... but it can not destroy conclusive evidence of guilt; and such evidence must be restricted to showing character as to such moral qualities as have pertinence to the crime with which he is charged.”). However, La.C.E. art. 405 states explicitly that “[e]xeept as provided in Article 412 [Louisiana’s rape shield law], in all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to general reputation only.” (Emphasis added). In this respect, apparently by deliberate legislative choice, Louisiana law is considerably narrower than Cal. Evid. Code § 1102, or its counterpart in Fed. R.Evid. 405(a), which provides that “[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.” See United States v. Robinson, 94 F.Supp.2d 751 (W.D.La.2000) (expert evidence that test results indicating that defendant did |7not have a sexual interest in underage females admissible at trial for sexual abuse of two females under the age of 12 years); see also 1 McCormick on Evidence, § 191, p. 675 (5th ed., John W. Strong, ed., 1999)(Fed.R.Evid 405(a) “allows expert opinion testimony about an accused’s character traits.”).

Although evidence of a defendant’s lack of sexual deviancy, or lack of interest in children as the occasion of sexual desire, does not constitute a “generalized description of a person’s disposition or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness,” McCormick, § 195, p. 686, it nonetheless constitutes evidence of character because it reveals the “actual moral or psychical disposition” of the person. 1 John Henry Wigmore, Evidence, § 52, p. 448 (3rd ed.1940). Moreover, the evidence is offered here for the same purpose as any other evidence of good character by the defendant, to persuade the factfinder that the accused did not commit the charged offense because he or she is not the kind of person likely to have committed the crime. Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948) (“[T]his line of inquiry firmly denied to the State is opened to the defendant because character is relevant in resolving probabilities of guilt. He may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged.”). As to how a defendant may prove his good character, Louisiana law incorporates the traditional limit that the accused may do so by means of reputation only, as opposed to evidence of specific acts or of opinion. This restriction, peculiar to the law of character evidence, “is said to be justified by overwhelming considerations of practical convenience in avoiding innumerable collateral issues which, if it were attempted to prove character by direct testimony, would complicate and confuse |sthe trial, distract the minds of jurymen and befog the chief issues in the litigation.” Michelson, 335 U.S. at 478, 69 S.Ct. at 219 (internal quotation marks and citation omitted).

We therefore subscribe to the views of other appellate courts in states with evidentiary rules similar to those in Louisiana, that while a defendant may present evidence of his or her reputation in the community as a moral person and for safe and proper treatment of young children, Thomas v. State, 669 S.W.2d 420, 423-24 (Tex.App.1984), he or she may not present the opinion of a mental health expert, based either on a “profile” of a child sex abuser or on the results of standardized psychological tests, that the defendant is a moral person without deviant sexual tendencies which might prompt pe-dophiliac behavior. R.D. v. State, 706 So.2d at 775 (“The trial court correctly stated that the lack of a deviate sexual personality [as indicated by psychological test results] is not permissible character evidence, because Alabama law allows only testimony about general reputation or about reputation as to a specific trait.”); Floray, 715 A.2d at 860 (“[The defense psychologist] may not offer expert testimony that Defendant does not fit the profile of a pedophile or child molester, because such testimony amounts to his opinion about Defendant’s character traits for the purpose of proving that he acted in conformity therewith.”); In Re B.J., 249 Ill.Dec. 233, 735 N.E.2d at 1065 (“[W]hfle respondent could have introduced evidence of his good character or personality through ‘general reputation’ evidence, the trial court correctly prohibited him from doing so using the expert personal opinion testimony of [the defense psychologist].”)

The provisions of La.C.E. 412.2 do not require a different result as a matter of fairness to the defendant. Although the statute permits evidence which demonstrates the character and propensities of the defendant, it authorizes proof 13only of conduct, ie., evidence of other sexual crimes, not of psychological profiles or expert opinion testimony as to the defendant’s proclivities for sexual abuse. Nothing in the statute precludes the defense from calling its own fact witnesses to dispute the state’s other crimes evidence or from cross-examining the state’s witnesses thoroughly, “the time-honored ... device best suited to determine the trustworthiness of testimonial evidence.” Watkins v. Sawders, 449 U.S. 341, 349, 101 S.Ct. 654, 659, 66 L.Ed.2d 549 (1981).

The trial court’s ruling is therefore reversed, the case is remanded for completion of trial, and the district court is directed not to consider this aspect of Dr. Shwery’s testimony in determining the guilt or innocence of respondent.

DISTRICT COURT RULING REVERSED; CASE REMANDED.


source: Caselaw Access Project

author: CALOGERO, Chief Justice,

license: Public Domain

text:
    Shantell Lynn PERNICIARO, et al. v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 2002-CC-1428.
    Supreme Court of Louisiana.
    Jan. 31, 2003.
   In re: Greater Lakeside Corporation and Causeway Associates; - Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, Nos. 2000-6295; to the Court of Appeal, Fourth Circuit, No. 2002-C-0889.

Writ granted.

CALOGERO, C.J., concurs and assigns reasons.

KNOLL, J., would grant the writ.

CALOGERO, Chief Justice,

concurs and assigns reasons.

I concur in the court’s action. Whether Dumas v. State of Louisiana, 828 So.2d 530 (La. 2002), is distinguishable from or applicable to the present case is to be decided by the court of appeal. The fact that this court has remanded the case to the court of appeal does not mean that this court is suggesting or hinting that a particular result should be reached. Rather, this court finds that a detailed consideration of the matter pursuant to the court of appeal’s supervisory jurisdiction is warranted. See Jones v. Congemi, 02-2979, 840 So.2d 525 (La.1/24/03).


author: |! CALOGERO, Chief Justice,

text:
    Sherry WATTERS, et al. v. DEPARTMENT OF SOCIAL SERVICES, et al.
    No. 2003-CC-0187.
    Supreme Court of Louisiana.
    Jan. 31, 2003.
   In re: Watters, Sherry; Breyne, Frances M.; Recasner, Gina; Wiltz, Gretchen; Lemieux, Wendy; - Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 01-17775, 01-18355; to the Court of Appeal, Fourth Circuit, No. 2002-C-2490.

Writ denied.

CALOGERO, C.J., dissents from the writ denial and assigns reasons.

JOHNSON, J., would grant the writ.

|! CALOGERO, Chief Justice,

dissents from denial of the writ.

I believe this writ application should be granted and the ruling of the two lower courts taken up for review because I do not believe that summary judgment is appropriate at this stage, especially as discovery has not yet been completed. In my opinion, in this case there should be further discovery and subsequent exploration of the facts in a trial on the merits before the district court should determine whether the asbestos exclusion clauses in the defendants’ respective insurance policies apply. In my view, it is premature to enter judgment on whether the asbestos exclusion clause applies before it has been determined that the plaintiffs’ injuries are caused by asbestos or any of the other ailments included in the asbestos exclusion clause.

I would also grant to consider the applicability to this case of our opinion in Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119, 139, where Justice Victory acknowledged in dissent that the majority decision in Doerr “will make it virtually impossible to determine coverage issues by declaratory judgment or summary judgement at the outset of litigation”, a view which has particular application in this case at this juncture. In Doerr, plaintiffs sought compensation from, among others, the parish department of water works, for personal injuries allegedly suffered following the consumption and/or use of water contaminated by 1 ¡¿he discharge of hydrocarbons into the parish water supply from an oil refinery. We reversed a summary judgment in favor of defendants, holding that the total pollution exclusion endorsement in the insurance policy at issue was designed to exclude coverage for environmental pollution only, and thus was inapplicable. Similarly, in this case, plaintiff was exposed to asbestos not because defendants manufactured asbestos (just as the parish water works in Doerr was not an environmental polluter) but rather because the defendants provided a work environment in which water intrusion allegedly caused the delamination of asbestos insulation, resulting in a release of fibers into the air which she inhaled or ingested. In this case, defendants are not manufacturers of asbestos, and plaintiff is not a welder or a plumber or a journeyman who regularly handles asbestos or asbestos-containing materials; rather, she was a clerical worker in an office environment who was allegedly only exposed to asbestos because of persistent water leaks in the building, which is probably a covered peril under the insurance policies at issue. Therefore, I believe the asbestos exclusion clause should be examined to determine whether is it appropriate to apply it to the defendants at bar.

I do not necessarily take issue with the district court’s “upholding all of the asbestos exclusion clauses before the court”. However, it is entirely another matter for the district court to conclude that the asbestos exclusion clauses in this case are not only to be upheld as valid but also are applicable as a bar to the recovery of damages which plaintiffs seek in this case. The question has not yet been answered as to whether the bodily injuries at issue were caused by asbestos, or mold or other toxins brought on by excessive water leakage over a period of time in the Plaza Tower Building, as alleged, or a combination of both, or by some other cause. These questions are, in my view, still to be answered in this case after trial, irrespective of | .-¡whether the majority is correct here in blessing a summary judgment which upholds the asbestos exclusion clauses in the respective policies.

For these reasons, I believe the writ should be granted, and therefore I respectfully dissent from the writ denial.


author: hCALOGERO, Chief Justice,

text:
    Jimmy BARNETT v. LOUISIANA STATE UNIVERSITY MEDICAL CENTER-SHREVEPORT
    No. 2002-CC-2576.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
   [ ^RANTED

In this case, plaintiff filed suit against defendant on January 24, 2002. In his petition, plaintiff requested service of process on C.T. Corporations Systems, which was the incorrect agent for service of process. On February 4, 2002, C.T. informed plaintiff of this mistake. More than 90 days after receiving this notification from C.T., plaintiff served the correct agent for defendant.

Louisiana Code of Civil Procedure article 1672 requires dismissal without prejudice as to a named defendant for whom service of process has not been requested within the 90-day time period prescribed by article 1201(C), unless good cause is shown why service could not be requested. If the plaintiff successfully demonstrates good cause, “the court may order that service be effected within a specified time.” La.Code Civ. Proc. art. 1672(C).

Louisiana courts strictly construe the good cause requirement of article 1672(C). See Norbert v. Loucks, 01-1229 (La.6/29/01), 791 So.2d 1283. Consequently, plaintiffs are strictly held to the obligation of serving the correct agent for service of process. See Conner v. Continental Southern Lines, 294 So.2d 485 (La.1974) (holding that service of process on incorrect agent is illegal and without effect); Brooks v. Terry, 608 So.2d 1047 (La.App. 1st Cir.1992) (annulling judgment against defendant who had been improperly served).

| ¡^Relevant to this case, La.Rev.Stat. 13:5107 explicitly governs service on a state agency, such as the defendant medical center. Thus, plaintiff could have discerned the proper agent with minimal effort and cannot show good cause for the delay in proper service. The requirement that service upon defendant be requested within the 90-day period should reasonably be read to require an accurate request of service upon the proper agent for defendant. Because correct service was not accomplished in this case, and because plaintiff did not attempt service within 90 days on the proper agent, even after being notified by C.T. Corporations Systems that it was not the correct agent for defendant, article 1672 is applicable, and dismissal without prejudice is required.

Denial of defendant’s motion for involuntary dismissal by the district court and the court of appeal is hereby reversed and judgment is entered herein dismissing plaintiffs petition against defendant without prejudice.

CALOGERO, C.J., dissents from the action.

JOHNSON, J., dissents.

hCALOGERO, Chief Justice,

dissents from the action.

The provision of La.Code Civ. Proc. art. 1672 authorizing dismissal of a party’s action without prejudice is a serious imposition upon a litigant’s constitutional right of access to the courts, and should thus be enforced only if the statute clearly and unequivocally commands that result. In this case, we have a litigant who indeed requested service upon defendant within the 90-day time period prescribed by article 1201(C), but who mistakenly requested that defendant be served through an incorrect agent. There is no absence of a request for service; therefore, article 1672(C) does not apply to mandate an involuntary dismissal of plaintiffs action, and the judgment of the district court should be affirmed. Even if plaintiffs requested service was improper under article 1672(C), however, plaintiffs suit should not be altogether dismissed by this court. Rather, the action should be remanded to the district court to give plaintiff the opportunity to show good cause why service could not be requested upon the proper agent, as is required by article 1672(C).


author: JjPER CURIAM.

text:
    In re: Gregory N. WAMPLER
    No. 2002-OB-2851.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
   ON APPLICATION FOR READMISSION.

JjPER CURIAM.

This proceeding arises out of an application for readmission filed by petitioner, Gregory N. Wampler, an attorney who is currently disbarred from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Petitioner was disbarred by this court on April 7, 1994, following his criminal convictions for improperly using client funds. In re: Wampler, 94-0491 (La.4/7/94), 637 So.2d 92. Petitioner’s disbarment was made retroactive to the date of his interim suspension on April 20, 1992. Petitioner subsequently filed an application for readmission to the practice of law, asserting that he has complied with the readmission criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) initially indicated that it would take no position concerning petitioner’s readmission, and accordingly, the matter was referred for a formal hearing before a hearing committee.

| aAfter considering the evidence presented, the hearing committee recommended that petitioner be conditionally readmitted to the practice of law for a period of five years, subject to the following conditions:

1. Petitioner must refrain from all use of alcohol and illegal drugs; refrain from abusing prescription and non-prescription medication; and refrain from engaging in any and all forms of gambling and gaming.
2. Petitioner must enter into a modified contract with the Lawyer’s Assistance Program to extend the life of his contractual obligation through that program for a period of five years commencing from the date his conditional readmission is approved by the Louisiana Supreme Court. Additionally, the terms of the contract shall include all of the usual and customary provisions as they pertain to monitoring for the use/ abuse of alcohol and illegal drugs, but shall also include a provision that monitors for any gambling/gaming activity.
3. At Petitioner’s cost, he shall be subject to random alcohol and drug testing te be conducted under the direction of the Lawyer’s Assistance Program.
4. A practice monitor shall be appointed through the Louisiana Attorney Disciplinary Board for the purpose of monitoring Petitioner’s law practice and shall include monitoring for compliance with trust account rules, accounting procedures, law office management procedures, adequate communications with clients, diligence in the representation of clients, and otherwise verifying compliance with the Rules of Professional Conduct.
5. A certified public accountant, selected by the practice monitor, shall be engaged at Petitioner’s cost to conduct an annual year-end audit of Petitioner’s trust account, operating account, and personal finances, to provide a documented basis for reassurance that he is in compliance with these terms and conditions of readmission.
6. Petitioner shall enroll in Ethics School as conducted and presented by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.
IN- Petitioner must not violate any Rules of Professional Conduct throughout the period of his conditional readmission.
8. Should a disciplinary complaint be lodged against Petitioner at any time during the period of his conditional readmission, he must promptly and fully cooperate with any investigation conducted by the Office of Disciplinary Counsel.
9. Any violation of any single term or condition of this conditional readmission to the practice of law shall result in a motion to revoke Petitioner’s conditional readmission with an expedited hearing to be conducted by the Disciplinary Board in a summary fashion as directed by the Disciplinary Board.

Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

Thereafter, the disciplinary board adopted the factual findings of the hearing committee, and agreed that petitioner proved by clear and convincing evidence that he satisfies the criteria for readmission. Accordingly, the board recommended to this court that petitioner be readmitted to the practice of law, subject to a five-year period of probation and the conditions recommended by the committee.

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

DISCUSSION

After considering the record in its entirety, we agree that petitioner has met the criteria for readmission set forth in Supreme Court Rule XIX, § 24(E). In particular, we find the record demonstrates petitioner has completed the payment of all restitution owed to his former clients and the bar association’s Client Protection Fund. We further note Elton Maxwell, the client from whom petitioner misappropriated $125,000 and who previously opposed his application for readmission, now^^acknowledges that petitioner repaid him in full and he therefore had no reason to oppose the application.

Accordingly, we will accept the disciplinary board’s recommendation and order that petitioner be conditionally readmitted to the practice of law in Louisiana, subject to a probationary period of five years and the conditions recommended by the-hearing committee. Should petitioner fail to comply with the conditions of probation, 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.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Gregory N. Wampler be readmitted to the practice of law in Louisiana. For a period of five years from finality of this judgment, petitioner’s readmission shall be governed by and subject to the conditions set forth in the recommendation of the hearing committee. Should petitioner fail to comply with the conditions of his probation, 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. All costs of these proceedings are assessed against petitioner.

      . In May 1992, petitioner pleaded guilty in the U.S. District Court for the Western District of Louisiana to two counts of securities fraud, a violation of 18 U.S.C. § 513(a), for counterfeiting two certificates of deposit totaling $125,000 and presenting them to his client, Elton E. Maxwell, as an "investment” of Mr. Maxwell's funds. Petitioner was sentenced to serve twenty-one months in the federal prison camp at Fort Bliss, El Paso, Texas. He was also fined $5,000 and ordered to make full restitution to Mr. Maxwell. Petitioner served his sentence and was discharged from federal custody on February 20, 1994.
      In August 1992, petitioner pleaded guilty in the 35th Judicial District Court for the Parish of Grant to five counts of felony unauthorized use of a movable, a violation of La. R.S. 14:68, in connection with the misappropriation of approximately $97,500 belonging to five clients. Petitioner was sentenced to eighteen months in prison, to run concurrently with the federal sentence, and fined $5,000; he was also ordered to make full restitution to the five clients.


author: |,PER CURIAM.

text:
    In re: Kathleen M. BILBE
    No. 2002-B-1740.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

|,PER CURIAM.

This disciplinary matter arises from four counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kathleen M. Bilbe, an attorney licensed to practice law in the State of Louisiana.

FORMAL CHARGES

Counts I and II — The Immigration Matter

In late 1996, Lex Magauen Joseph retained respondent to represent him in an ongoing immigration proceeding. Specifically, Mr. Joseph, who is a citizen of St. Lucia, had sought to have his immigration status in the United States adjusted to that of a permanent resident by virtue of his marriage to an American citizen. In March 1997, respondent filed with the Immigration Court an application for adjustment of Mr. Joseph’s status. The court proceeding was then continued for a period of several months to allow time for the Immigration and Naturalization Service (INS) to process the Immigrant Visa Petition (Form 1-130) filed on behalf of Mr. Joseph, without approval of which the court could not consider granting the application for adjustment of status.

| aMr- Joseph’s case was subsequently set for a status hearing on August 7, 1997. On June 9, 1997, respondent filed a motion to reset the August 7 hearing, stating that she would be unavailable on that date. Respondent also represented to the court that the motion was not opposed by John Carté, the Assistant District Counsel for the INS. In fact, however, in a previous telephone conversation with respondent, Mr. Carté had voiced his unequivocal objection to respondent’s request to reset the hearing, and he so indicated in the written opposition he filed with the court on June 11, 1997. The court ultimately denied respondent’s motion based on Mr. Carté’s opposition, and the August 7 hearing went forward as scheduled. When the presiding judge, United States Immigration Judge Jeffrey Zlatow, confronted respondent at the hearing concerning her false representation that her motion was not opposed, her response was simply to complain about the relevancy of the matter to the issue of Mr. Joseph’s application for adjustment of status. Respondent then began to demand that the court decide the application for adjustment of status immediately.

When Judge Zlatow inquired of respondent whether Mr. Joseph’s Immigrant Visa Petition had been approved, she told him that it had been approved, but in fact, it had not. Judge Zlatow informed respondent that he would be forced to deny Mr. Joseph’s application for adjustment of status in the absence of an approved Immigrant Visa Petition. When respondent persisted in her argument that the Immigrant Visa Petition had been approved, Judge Zlatow asked her to produce an approval notice which would substantiate her assertion. In response, respondent showed the judge a copy of a notice informing Mr. Joseph that he would be required to appear for an interview with the INS in connection with the adjudication of his Immigrant Visa Petition. Judge Zla-tow patiently and repeatedly explained to respondent that the | ¡¡“notice of interview” form is not a notice of the approval of the Immigrant Visa Petition; nevertheless, respondent continued arguing with Judge Zlatow that the Immigrant Visa Petition had been granted and that the application for adjustment of status was ripe for the court’s consideration. Judge Zlatow reminded respondent that he would be forced to deny Mr. Joseph’s application for adjustment of status in the absence of an approved Immigrant Visa Petition, and asked respondent whether she was certain she wanted a ruling on the application that day. When respondent replied in the affirmative, Judge Zlatow turned to Mr. Joseph, explained the situation, and asked him whether he wished to have respondent continue to represent him. Respondent interjected and refused to allow Judge Zla-tow to speak with her client. She also continued to argue with Judge Zlatow about the approval of the Immigrant Visa Petition and the court’s adjudication of Mr. Joseph’s application for adjustment of status, and began to demand that the court accept for filing certain exhibits that she wished to present. Finally, Mr. Joseph spoke up and advised the court that he wanted to terminate respondent’s representation. Mr. Joseph also told Judge Zlatow that respondent had ignored his earlier instructions that she request a continuance of the case pending approval of the Immigrant Visa Petition. Judge Zla-tow ordered respondent to leave the courtroom and referred the matter to the INS for an investigation as to respondent’s qualifications and her conduct during the course of the proceeding. Judge Zlatow also granted Mr. Joseph a continuance of his case so that he could obtain new counsel.

On February 6, 1998, a petition seeking attorney discipline was filed against respondent by the Office of the General Counsel of the INS. The petition charged that respondent violated 8 C.F.R. § 292.3 when she willfully engaged in the following conduct in the course of her representation of Mr. Joseph:

|41. The first count charges that respondent falsely represented to the court that her “Motion to Reset Hearing” was not opposed by the Assistant District Counsel for the INS.
2. The second and third counts charge that respondent misled Judge Zla-tow and her client as to the status of Mr. Joseph’s Immigrant Visa Petition.
3. The fourth count charges that respondent misled Judge Zlatow when she falsely represented to the court that Mr. Joseph wanted the court to rule on his application for adjustment of status, when in fact, Mr. Joseph had instructed respondent to request a continuance of the matter.
4. The fifth and six counts charge that during the August 7, 1997 hearing, respondent made frivolous legal arguments having no basis in law or fact and engaged in contumelious or otherwise obnoxious conduct before Judge Zlatow.

In her answer to the petition, respondent admitted the first, second, fourth, and fifth counts are true; she did not answer the third count and complained the sixth .count is “vague and incomprehensible.” Respondent also attacked Judge Zlatow, whom she accused of violating the Code of Judicial Conduct by, among other things, failing to be patient, dignified, and courteous during the Joseph case.

After consideration of the record of the proceedings, the Chief Immigration Judge, Michael J. Creppy, found the charges against respondent were established “by clear, convincing and unequivocal evidence.” By order dated June 2, 1998, respondent was suspended from practice before the Executive Office for Immigration Review and the INS for a period of five years.

IsThe ODC was notified of the sanctions against respondent by letter from Peggy Philbin, General Counsel of the United States Department of Justice, Executive Office for Immigration Review. Respondent failed to provide a substantive response to the complaint. As a result, the ODC requested that respondent give a sworn statement concerning the matter. Respondent refused, asserting that the ODC does not have the authority to depose her. A subpoena was then issued for respondent’s appearance on November 18, 1998. Although the subpoena was personally served on respondent, she did not appear. Instead, on the day of the sworn statement, respondent filed with this court a motion to quash the subpoena. We denied the motion on November 24,1998. In re: Complaint No. 7811, 98-2880 (La.11/24/98).

The ODC alleges that respondent’s conduct in the immigration matter violated the following Rules of Professional Conduct: Rules 1.1 (failure to provide competent representation to a client), 1.2 (scope of the representation), 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.1 (meritorious claims and contentions), 3.3 (candor toward the tribunal), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 3.5(c) (engaging in conduct intended to disrupt a tribunal), 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(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).

| RCounts III and IV — The Hormel Matter

In 1993, respondent filed ah age discrimination suit on behalf of her client, Kurt Schneider, against the Hormel Foods Corporation, Mr. Schneider’s former employer. Schneider v. Geo. A. Hormel & Co., No. 93-1264, 1996 WL 191632 on the docket of the United States District Court for the Eastern District of Louisiana. On April 26, 1995, respondent telephoned James Cavanaugh, the Assistant Secretary and Senior Attorney of the Hormel Foods Corporation, to discuss a settlement of Mr. Schneider’s case. By letter dated April 27, 1995, Hormel’s retained counsel, James Morgan of the New Orleans law firm of Fisher & Phillips, wrote to respondent and advised her that he represented Hormel in the case, and therefore that “it is appropriate for you to contact [me] prior to engaging in direct client contact.” Over the next 3[é years, Mr. Morgan wrote six more letters to respondent reiterating his request that she not contact Hormel’s executives directly. Nevertheless, respondent did so on nine occasions between December 1995 and May 2000, both by letter and by telephone, without the prior knowledge or consent of Mr. Morgan. In addition to contacting Mr. Cavanaugh, respondent also contacted Mahlon Schneider, Hormel’s Vice President and General Counsel; Joel Johnson, Hormel’s President and Chief Executive Officer; and Mike MacLean, a Human Resources official at Hormel, concerning Mr. Schneider’s case. Five of respondent’s contacts with the Hormel executives occurred after the litigation was finally concluded in Hormel’s favor.

In connection with the case against Hormel, respondent hired a court reporting firm, Carol F. Gallo d/b/a Mid-South Reporting Service, to take the deposition 17testimony of a witness. In February 1995, Ms. Gallo billed respondent $480.20 for her services. Respondent has conceded that the charge is reasonable and she has made a partial payment of $50, but she refuses to remit the balance.

The ODC alleges that respondent’s conduct in the Hormel matter violated the following provisions of the Rules of Professional Conduct: Rules 4.2 (communication with a person represented by counsel), 8.4(a), and 8.4(d).

DISCIPLINARY PROCEEDINGS

On January 25, 2000, the ODC filed four counts of formal charges against respondent. In her answer to the formal charges, respondent denied any misconduct in connection with the immigration matter. With respect to the Hormel matter, respondent admitted that she contacted Mr. Cavanaugh and that she contacted Hormel executives after the conclusion of the litigation, but denied the remainder of the allegations. Finally, respondent admitted that she had not fully paid a court reporter’s bill, but asserted that her failure to pay the bill does not constitute an unreasonable failure to pay debts which arose in the litigation stream of commerce.

Hearing Committee Recommendation

This matter proceeded to formal hearing on the merits on October 26, 2000. The ODC introduced a volume of documentary evidence in support of the formal charges and called Mr. Morgan to testify in person before the committee. Respondent appeared and cross-examined Mr. Morgan; however, she did not testify on her own behalf.

IsAfter reviewing the record of this matter, the hearing committee made the following factual findings:

Count I
1.Respondent was suspended from the practice of law before the Executive Office for Immigration Review and the INS for a period of five years;
2. Respondent’s action before Judge Zlatow was willfully misleading and deceitful when she advised him that an Assistant District Counsel had no objection to a motion to reset a hearing;
3. Respondent’s action before Judge Zlatow was willfully misleading and deceitful when she advised him that the Immigrant Visa Petition had been approved by the INS;
4. Respondent’s action before Judge Zlatow was willfully misleading and deceitful when she advised Mr. Joseph as to the status of his Immigrant Visa Petition with the INS;
5. Respondent’s action before Judge Zlatow was willfully misleading and deceitful when she advised the judge that Mr. Joseph wanted the court to rule on his application when, in fact, he instructed respondent to request a continuance of the matter;
6. Respondent engaged in grossly inappropriate behavior and contumelious or otherwise obnoxious conduct before Judge Zlatow “by disrupting the proceeding before him when she threw the exhibits at the judge and storm[ed] back into the courtroom after being escorted out twice, all of which created a concern for the safety of the people in the courtroom.”

Based on these factual findings, the committee determined that respondent’s conduct before Judge Zlatow violated Rules 1.2, 1.4, 3.1, 3.3, 3.4(c), 3.5(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. However, the committee found no |flviolation of Rules 1.1 and 1.3, reasoning that respondent’s conduct with respect to her client did not reflect a lack of legal knowledge, skill, or preparation, nor a lack of reasonable diligence or promptness.

Count II
7. Respondent has no basis in law for her position that the ODC had no authority to interview or depose her;
8. Respondent failed to appear before the ODC after she was served with a subpoena to do so.

Based on these factual findings, the committee determined that respondent violated Rules 3.4(c), 8.1(b), 8.1(c), 8.4(a), 8.4(c), 8.4(d), and 8.4(g) of the Rules of Professional Conduct.

Count III
9. Respondent contacted representatives of Hormel, the defendant in a lawsuit she filed in 1993, on nine occasions beginning in April 1995 and ending on May 24, 2000, even though Hormel was represented by attorney James Morgan;
10. Mr. Morgan asked respondent not to contact representatives of Hormel in written correspondence dated April 27, 1995, December 6, 1995, July 30, 1997, August 4, 1997, January 21, 1998, and September 18,1998;
11. All of respondent’s direct contacts with representatives of Hormel were attempts on her part to settle the lawsuit, which discussions she should have had with Mr. Morgan;
12. Respondent’s client lost the litigation. The ruling in Hormel’s favor was affirmed by the U.S. Fifth Circuit Court of Appeals and certiora-ri was denied by the U.S. Supreme Court;
|in13. Respondent continued to contact representatives of Hormel after certio-rari was denied by the U.S. Supreme Court and after Mr. Morgan filed a complaint with the ODC on December 10,1998;
14. All of the representatives of Hormel contacted by respondent were management personnel who may have been involved or who supervised individuals who may have been involved in the decision to settle the Schneider lawsuit;
15. None of the representatives of Hormel contacted by respondent had personal knowledge of relevant facts in connection with the lawsuit.

Based on these factual findings, the committee determined that respondent violated Rules 4.2, 8.4(a), and 8.4(d) of the Rules of Professional Conduct. With respect to respondent’s contact with the Hormel representatives, the committee noted that these individuals all have managerial responsibility at Hormel and are high-ranking officers of the company who were in a position to possibly effect a settlement of Mr. Schneider’s case. Once Mr. Morgan’s representation was established, respondent had no legal basis upon which to contact these representatives directly without Mr. Morgan’s permission.

The committee rejected respondent’s reliance upon Schmidt v. Gregorio, 25,305 (La.App. 2nd Cir.10/27/93), 705 So.2d 742, to support her assertion that she did nothing improper in contacting Hormel’s executives. The committee noted that case concerned the issue of contact with a company’s former employees, not present ^employees, as in the instant matter. However, the Schmidt court referred to Rule 4.2 of the ABA’s Model Rules of Professional Conduct and the comments thereunder. The comments list three categories of present corporate employees with whom ex parte contact is prohibited: (a) those who have managerial responsibility on behalf of the corporation, (b) those whose acts or admissions concerning the subject matter of the litigation may be imputed to the corporation, and (c) those whose statements may constitute an admission by the corporation. The committee determined the individuals contacted by respondent in this case fall within the prohibited category (a).

Count TV
16. Respondent hired Carol F. Gallo d/b/a Mid-South Reporting Service to take a deposition in the Hormel suit and failed to pay the entire bill for her services;
17. Respondent owes Carol F. Gallo $480.20 plus court costs.

The committee found no violation of the Rules of Professional Conduct based on these factual findings, opining “that the failure to pay an invoice of a court reporter does not constitute action that is prejudicial to the administration of justice even though Respondent has no justification for not paying the invoice. The Committee believes that to hold otherwise, the Board would become a collection agency for creditors of attorneys.”

The committee found that respondent intentionally and knowingly violated her duties to her client, the public, the legal system, and the profession, and that the baseline sanction for her misconduct is disbarment. The committee determined no mitigating factors are present, but that the following aggravating factors are present: dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1979). The [ ^committee further observed that respondent has no remorse for her actions, that she refuses to accept responsibility for them, and that she refuses, even in a minor way, to acknowledge their wrongful nature. Accordingly, finding no reason to deviate from the baseline sanction, the committee recommended that respondent be disbarred.

The ODC objected to the committee’s determination that respondent’s failure to pay a court reporter does not constitute a violation of the Rules of Professional Conduct. Respondent filed nothing concerning the committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the record of this matter, the disciplinary board found that the hearing committee’s factual findings are generally supported by the record, with two exceptions. First, the board noted that there is no indication from the transcript of the immigration hearing that respondent threw the exhibits at the judge or that she was escorted out of the courtroom twice. However, the board agreed that respondent’s conduct during the hearing was otherwise contumelious and obnoxious. Secondly, the board found Mr. Cava-naugh’s deposition indicated that he was very familiar with the relevant facts of the lawsuit filed by respondent. Regardless, the board agreed that respondent’s repeated attempts to contact Hormel representatives were improper. The board adopted the committee’s report in all other respects.

Based upon its de novo review, the board agreed that the committee correctly applied the Rules of Professional Conduct in connection with Counts I through III of the formal charges. With respect to Count IV, the board noted that it is a matter of first impression in Louisiana whether a lawyer’s failure to pay a court reporter’s bill constitutes conduct prejudicial to the administration of justice. Nevertheless, in the |13absence of “specific jurisprudence” to support a finding of misconduct, the board agreed that respondent’s failure to pay a court reporter does not constitute a violation of Rule 8.4(d), and recommended that Count IV be dismissed.

The board found respondent knowingly and intentionally violated duties owed to her client, the public, the legal system, and the profession. She caused actual or potential injury to her client, Mr. Joseph, by failing to follow his instructions and to correctly advise him on the status of his case, and when she risked an unfavorable outcome by continuing to urge ill-advised motions. She caused actual or potential injury to the legal profession by making false statements to the court, misrepresenting statements of opposing counsel, and by engaging in disruptive behavior. She caused actual or potential injury to the public and to the profession by her failure to cooperate in the investigation of the disciplinary matter, and she caused actual or potential injury to the legal system by contacting representatives of a defendant company when the defendant was represented by counsel. The board concurred in the aggravating factors cited by the hearing committee, and agreed that no mitigating factors are present.

In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board recommended that respondent be Indisbarred. The board also 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 a timely objection in this court to the recommendation of the disciplinary board. However, after the expiration of the time for filing objections under Supreme Court Rule XIX, § 11(G)(1), respondent sought to file a “late” objection. On October 10, 2002, this court issued an order directing respondent and the ODC to submit written briefs, without oral argument, “addressing whether the sanction recommended by the disciplinary board in this case is appropriate.” Respondent and the ODC both timely filed briefs in response to the court’s order.

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.

Respondent is charged with engaging in misconduct before an immigration judge, communicating with an opposing party represented by counsel, and failing to pay an invoice for court reporting services. We will consider each count in turn.

The first count relates to respondent’s conduct in connection with her handling of the immigration matter. Unlike a criminal conviction, the determination of the INS that respondent engaged in unprofessional conduct is not conclusive of her guilt as to those matters. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; see also Supreme Court Rule XIX, § 19. Nonetheless, there is more than ample evidence in the record to support a finding, under the clear and convincing evidentiary standard, that respondent made knowing false statements to an immigration judge. Respondent willfully made false representations to the court that a motion she filed was unopposed by her adversary, when in fact, counsel had voiced his unequivocal objection to the motion. Respondent also informed the court that her client’s Immigrant Visa Petition had been approved by the INS, when in fact, it had not been approved. Such conduct is not only a violation of the rules applicable to practitioners before the INS, but is a violation of the Rules of Professional Conduct.

|1fiWe also find the record contains sufficient evidence that respondent engaged in disrespectful, disruptive behavior before Judge Zlatow during the August 7, 1997 hearing. Respondent’s conduct during that hearing was grossly inappropriate and would not have been tolerated by any judge in any courtroom. Asked in these proceedings to explain her behavior, respondent simply contends that she was zealously representing her client. While we do not deny that attorneys must be vigorous and zealous advocates on behalf of their clients, respondent’s conduct during Mr. Joseph’s hearing went far beyond such advocacy. Indeed, respondent’s excessive zeal could actually have been detrimental to her client’s interests; had Judge Zlatow acceded to respondent’s demands that he rule immediately on Mr. Joseph’s application for adjustment of status, the application would have been denied and Mr. Joseph would have been deported from this country. Respondent’s conduct violated the Rules of Professional Conduct.

The second matter involves respondent’s communications with executives of the Hormel Foods Corporation. Rule 4.2 of the Rules of Professional Conduct clearly prohibits a lawyer from communicating about the subject of the representation with a person (or an employee or agent of such a person) known to be represented by counsel, unless the lawyer has first obtained the consent of the other lawyer. In the instant case, respondent persistently and repeatedly contacted Hormel’s executives in an effort to settle her client’s case on favorable terms. Given that Hormel’s counsel had instructed respondent on no less than seven occasions not to contact his client, respondent could not possibly have believed that she had counsel’s permission to communicate with Hormel directly. While no tangible harm ultimately resulted from respondent’s unauthorized communications with an adverse corporate party, we recognize that Rule 4.2 is prophylactic in nature and is designed to preserve the sanctity of the attorney-client relationship. See, e.g., State v. Gilliam, 98-1320 (La.App. 4th Cir.12/15/99), 748 So.2d 622. Accordingly, there can be no doubt that respondent has engaged in conduct prohibited by the Rules of Professional Conduct.

Finally, the hearing committee and disciplinary board have recommended the dismissal of the charge involving the unpaid invoice for court reporting services. While we do not condone respondent’s failure to pay litigation-related expenses she has incurred, we tend to agree with the board that such conduct does not generally constitute a violation of the Rules of Professional Conduct. Furthermore, the ODC has not filed an objection in this court to the board’s recommendation. Therefore, we will dismiss Count IV of the formal charges.

Having found evidence of professional misconduct, the sole issue presented for our consideration is 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).

The ABA’s Standards for Imposing Lawyer Sanctions and this court’s prior jurisprudence support a baseline sanction of a lengthy suspension or disbarment. The aggravating factors present include a pattern of misconduct, respondent’s refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. Neither the hearing committee nor the disciplinary board recognized the presence of any mitigating factors, but in its brief to this court, the ODC concedes that respondent has no prior disciplinary record in more than twenty years of practice. In addition, we note the record supports the mitigating factors of the absence of a 11Rdishonest or selfish motive and the imposition of other penalties or sanctions, namely respondent’s suspension from practice before the Executive Office for Immigration Review and the INS. We believe these mitigating factors outweigh the aggravating factors present.

After carefully reviewing the extensive record in this matter, we conclude the purposes of attorney discipline would best be served by a lengthy suspension, rather than disbarment. Accordingly, we will suspend respondent from the practice of law for three years.

DECREE

Upon review of the findings and recommendation of the hearing committee and the disciplinary board, and considering the record, it is ordered that Kathleen M. Sil-be be suspended from the practice of law in Louisiana for a period of three years. 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.

      . Mr. Joseph entered the United States in 1991 as a non-immigrant visitor with authorization to remain in this country for a temporary period not to exceed one year. Because Mr. Joseph had remained in the country beyond that time without authorization from the INS, he was facing deportation to St. Lucia if he did not obtain añ adjustment of his immigration status.

      . The record of this matter includes a transcript of the August 7, 1997 hearing in Mr. Joseph’s case.

      . 8 C.F.R. § 292.3 relates to professional conduct for practitioners before the INS.

      . We note that in subsequent correspondence to the ODC, respondent suggested that her answer to the petition for attorney discipline was "wrong” and “overly concise in an attempt not to detract from the violations of the Code of Judicial Conduct by Judge Zlatow.” Respondent went on to essentially deny the misconduct alleged in the petition for attorney discipline.

      .In the formal charges, the ODC specifically alleges that following this court's action on November 24, 1998, it issued a second subpoena for respondent’s appearance on February 18, 1999; that the subpoena was personally served on respondent on February 5, 1999; and that respondent did not appear as ordered. However, this charge is not supported by the record, as the ODC failed to introduce a copy of the subpoena into evidence and respondent contends that she did not receive it.

      . Although Mr. Cavanaugh is an attorney, he was not enrolled as counsel of record in the Schneider case. Mr. Morgan was the only attorney of record in the matter.

      . In November 1995, the jury in the Schneider case returned a verdict dismissing plaintiffs claims and awarding costs to Hormel. This judgment was affirmed on appeal, and the United States Supreme Court denied certiora-ri in the case in February 1998. Schneider v. Geo. A. Hormel & Co., 125 F.3d 852 (5th Cir.1997), cert. denied, 522 U.S. 1109, 118 S.Ct. 1038, 140 L.Ed.2d 104 (1998).

      . Ms. Gallo has obtained a judgment against respondent for the balance due. Respondent contends this judgment “is not valid" and was illegally obtained.

      . Schmidt is a declaratory judgment action arising out of a medical malpractice suit against a hospital. In the course of the litigation, plaintiffs’ counsel contacted a number of former employees of the hospital to interview them as potential witnesses in the case. None of these former employees were parties to the suit, and none were represented by counsel. When the hospital’s attorney objected, plaintiffs sought a declaratory judgment decreeing that it was not inappropriate for their attorney to contact and interview former hospital employees without the consent of the hospital’s attorney. The trial court denied relief, but the court of appeal reversed and held that a lawyer representing a client in a matter adverse to a corporate party that is represented by counsel may, without violating Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation’s lawyer.

      .The board distinguished the out-of-state cases cited by the ODC for the proposition that a lawyer's failure to pay litigation-related expenses is a violation of the Rules of Professional Conduct. For example, in In re Reiter, 567 N.W.2d 699 (Minn.1997), the attorney was disciplined, in part, because he failed to pay for court reporting services; however, the attorney was found to have converted funds he received from his client specifically for the purpose of paying the court reporter. Similarly, in In re Brown, 636 N.E.2d 1249 (Ind.1994), the attorney was disciplined for failing to personally pay discovery expenses as he had been ordered to do by the court.
      The board also rejected the ODC's reliance on In re: Landry, 98-2767 (La. 1/8/99), 728 So.2d 833, which it cited to support its argument that this court has recognized Rule 8.4(d) is an appropriate vehicle for bringing disciplinary action against a lawyer who fails to pay an obligation, even wholly unrelated to the practice of law, such as a child support arrearage. Landry was not based upon Rule 8.4(d), but rather upon an application of Supreme Court Rule XIX, § 19.1, which specifically allows the institution of disciplinary proceedings for non-compliance with a child support order.

      . The board cited Standard 6.11, which suggests that disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding, and Standard 6.31, which suggests that disbarment is generally appropriate when a lawyer improperly communicates with someone in the legal system (other than a witness, judge, or juror) with the intent to influence or affect the outcome of the proceeding, and causes significant or potentially significant interference with the outcome of the legal proceeding.

      . The board relied upon In re: Pardue, 98-3017 (La.3/26/99), 731 So.2d 224, and In re:

        Quaid, 94-1316 (La.11/30/94), 646 So.2d 343. In Pardue, formal charges were filed against the respondent based upon his criminal conviction for filing a false tax return and his direct communications with a claims adjuster in an effort to settle a personal injury claim, without the knowledge or consent of opposing counsel. This court imposed a two-year suspension, primarily based upon the conviction; the ODC had conceded that the Rule 4.2 violation was "relatively minor, and, standing alone, would probably justify no more than a reprimand.” 98-3017 at p. 4, fn. 7, 731 So.2d at 227. However, the board determined that respondent's efforts to reach a settlement in the Hormel case were "far more egregious than Pardue’s solitary contact with a represented party.” Moreover, the board found that respondent’s conduct in the immigration matter (which technically was in violation of the Code of Federal Regulations) is "congruent” with Pardue's tax conviction.
      In Quaid, the respondent was found to have violated two separate provisions of the Code of Federal Regulations by charging excessive attorney's fees and making false statements of material fact in a social security disability proceeding. He was disbarred for this conduct. The board noted that Quaid’s conduct mirrors respondent's violation of the Code of Federal Regulations for misleading an immigration judge, and concluded that by imposing the sanction of disbarment, this court intended to stress "the seriousness of making false statements to a judge.”

      . While we have discussed at length the more serious charges against respondent, the record also demonstrates that she failed to cooperate with the ODC in its investigation.


text:
    Varnell BOYLSTON v. Bruce TIDWELL, et al.
    No. 2002-CC-2872.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
   In re Tidwell, Bruce et al.; Truman Arnold Companies; Arnold, Truman Companies; St. Paul Fire & Marine Insurance Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, Nos. 445,157; to the Court of Appeal/Second Circuit, No. 36730-CW.

Granted. The case is remanded to the Court of Appeal for briefing, argument and a full opinion.

CALOGERO, C.J., concurs and assigns reasons.

KIMBALL and KNOLL, JJ., would deny the writ application.

CALOGERO, Chief Justice,

concurring and assigning reasons.

I concur in the court’s action. The fact that this court has reversed the court of appeal’s ruling, which denied defendant’s writ application, and directed that court to order briefing and oral argument and render a full opinion does not mean that this court intends to reverse the district court’s ruling below, nor does it mean that this court is suggesting or hinting that the court of appeal should do so on remand. Rather, this court finds that more detailed consideration of the matter pursuant to the court of appeal’s supervisory jurisdiction is warranted. See Jones v. Congemi, 02-2979 (La.1/24/03), 840 So.2d 525.


author: PER CURIAM.

text:
    STATE of Louisiana v. Joseph WARD
    No. 2002-KK-2605.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
   PER CURIAM.

The judgment of the court of appeal is reversed, and the ruling of the district court denying the defendant’s motion to quash for lack of jurisdiction is reinstated. Because the boundary between the parishes of Rapides and Grant has never been fixed pursuant to La.Rev.Stat. 50:221 et seq., a matter that is currently pending in a civil action between the parishes, the district court did not abuse its discretion in relying on secondary sources to determine jurisdiction under the doctrine of “l’erreur commune fait le droit,” or “common error.” See State v. Beard, 249 La. 811, 191 So.2d 631, 633 (1966); State v. Malone, 134 La. 779, 64 So. 711, 713 (1914). The district court did not abuse its discretion in disallowing introduction of disputed or incomplete surveys that had been commissioned at the behest of the now feuding parishes. Nor was fixing of the boundary necessary in this case, because the secondary evidence introduced at the hearing was sufficient to establish by a preponderance that the crime had been committed in an area that the residents and the local authorities, in this case the respective sheriffs offices and tax assessors, believed to be located wholly within Rapides Parish. See Beard, 191 So.2d at 634.

REVERSED; DISTRICT COURT JUDGMENT REINSTATED; REMANDED


author: I , WEIMER, J.,

text:
    Charles W. POWELL, et al. v. Dr. Neill WEAVER
    No. 2001-CC-2937.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
   In re Weaver, Neill Dr. et al; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, Nos. 95-15501; to the Court of Appeal, Fourth Circuit, No.2001C-1177.

Denied.

VICTORY and TRAYLOR, JJ., would grant the writ.

WEIMER, J., concurs in denial and assigns reasons.

I , WEIMER, J.,

concurring.

I concur in the denial of the defendant’s writ application and write separately to address my reasons for doing so because I was not on the panel that rendered the decision in Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137.

Over twenty years ago, it was noted:

The growth of industrial sophistication and the enormous strides in medicine over the last fifty years have yielded countless benefits to ease the burdens of daily living. At the same time, however, exposure to the by-products of these triumphs has planted in the bodies of untold numbers of people the seeds of insidious disease that may not become evident for decades.

Comment, Liability Insurance for Insidious Disease: Who Picks Up the Tab?, 48 Fordham L.Rev. 657 (1980). Actions for damages caused by insidious disease have confronted the legal system with issues as complex and far-reaching as the |2technology giving rise to the diseases. Comment, Asbestosis: Who Will Pay the Plaintiff?, 57 Tul.L.Rev. 1491 (1983). Many of those issues remain vexing today. The factual predicates arising from insidious disease cases are simply different from those that traditional tort doctrines were designed to accommodate, and, accordingly, the courts have struggled in their efforts to create a framework that is workable and fair to both plaintiffs and defendants.

One of the most perplexing issues that arises in insidious disease cases involves the determination of when a cause of action for tort liability accrues, since insidious diseases, such as asbestosis, are typically characterized by a lengthy latency period, and consequently, a lengthy temporal separation between the alleged tortious conduct and the appearance of injury. In Louisiana, three possible approaches for determining when a cause of action accrues for purposes of Civil Code article 2315 liability have been identified: (1) the manifestation approach, which is the latest in time and looks to when the disease sued upon first becomes symptomatic or is diagnosed; (2) the significant exposure approach, which is the earliest in time and looks to when the plaintiff inhaled sufficient asbestos fibers such that the fibro-genic effect of this inhalation will progress to the disease independently of further exposure; and (3) the contraction approach, which attempts to pinpoint when the disease itself first arose in the body. This latter approach was rejected by this court as unworkable in Cole v. Celotex Corp., 599 So.2d 1058, 1076 n. 54 (La.1992) (“The contraction theory, however, is fraught with difficulties: ‘[t]he problem with this approach is that it is extremely difficult to accurately fix the point in time at which the disease is contracted.’ Faciane [v. Southern Shipbuilding Corp.], 446 So.2d [770, (La.App. 4 Cir.1984)] at 773. Due to these inherent difficulties, we have declined the invitation made by the parties and amici in this case to invoke this | ¡¡theory.”). The second approach is the one adopted by the majority in Austin, supra, while the first approach is that advocated by the dissenting justices in that decision. None of these approaches are problem-free; some unfavorable consequences will flow from whichever approach is ultimately followed. Nevertheless, after careful study of the well reasoned and thought-provoking majority and dissenting opinions in Austin, I believe the approach that presents the fewest significant problems, is most consistent with our law and jurisprudence, and represents the most equitable approach to the problem created by insidious disease cases is the substantial exposure theory adopted by the Austin majority.

Judicial experience instructs that there are at least three areas in which the determination of the accrual date of a cause of action in a long latency occupational disease case typically becomes relevant — in connection with prescription, with the applicable trigger for insurance coverage, and with the determination of what law applies. In Cole v. Celotex Corp., supra, this court addressed the latter two areas, adopting the significant exposure theory for purposes of determining whether pre- or post-comparative fault law applied in an action by former refinery workers who had been injured by long-term exposure to asbestos and for establishing the applicable trigger for insurance coverage. Cole was decided over ten years ago. Since its publication the decision has been embraced by the courts of appeal which have uniformly held that the substantial exposure test is the appropriate means of determining the date of accrual of a cause of action resulting from long-term exposure to a latent disease producing substance such as asbestos or tobacco. See Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46, writs denied, 01-1543, 804 So.2d 643, 01-1544, 804 So.2d 643, 01-1629 (La.12/14/01), 804 So.2d 643; Callaway v. Anco Insulation, Inc., 98-0397 (La.App. 4 Cir. 3/25/98), 714 So.2d 730, 731, writ denied, 98-1034 (La.11/19/99), 749 So.2d 666; Pitre v. GAF Corp., 97-1024 (La.App. 1 Cir. 12/29/97), 705 So.2d 1149, 1156; Young v. E.D. Bullard Co., 97-657 (La.App. 5 Cir. 11/25/97), 703 So.2d 783, 784-785, writ denied, 98-0457 (La.11/19/99), 749 So.2d 665; Thomas v. Armstrong World Industries, Inc., 95-2222 (La.App. 1 Cir. 6/28/96), 676 So.2d 1185, 1186, writ denied, 96-1965 (La.11/1/96), 681 So.2d 1272; Faciane v. Southern Shipbuilding Corporation, 446 So.2d 770 (La.App. 4 Cir.1984); Quick v. Murphy Oil Co., 446 So.2d 775 (La.App. 4 Cir.), writ denied, 447 So.2d 1074 (La.1984). Notably, in the more than ten years since its issuance, there has been no legislative response to the holding in Cole.

The substantial exposure approach of Austin is consistent with our holdings in Cole, and with the jurisprudence of the intermediate appellate courts having occasion to address the issue since Cole. It is also consistent with the prevailing rule in the United States Fifth Circuit Court of Appeal insofar as the issue of when insurance coverage is triggered. See Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.), cert denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981), finding, pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this approach to be consistent with the law of Louisiana.

The four to three vote of this court in Austin is reflective of the national debate that rages decades after insidious disease cases first came to the forefront of our judicial system and of the need for legislative action on a national level to address the problems created by the influx of these cases. In the absence of such action, Austin’s substantial exposure approach to insidious disease cases represents what is hoped to be the most equitable approach and the approach most consistent with the laws and jurisprudence of this State.

IfThat being said, however, it must be noted that Austin does not represent the last word on the continued viability of executive officer tort suits in Louisiana. At present there exists a conflict in the courts of appeal as to whether asbestos is both an oxygen compound and a metal compound so as to render asbestos-related disease a covered occupational disease under the worker’s compensation law and the sole remedy of employees suffering from such diseases. See and compare Brunet v. Avondale Industries, Inc., 99-1354 (La.App. 5 Cir. 12/5/00), 772 So.2d 974, writ not considered, 01-0171 (La.3/23/01), 787 So.2d 1006, and Gautreaux v. Rheem Manufacturing Company, 96-2193 (La.App. 4 Cir. 12/27/96), 694 So.2d 977, writ denied, 97-0222 (La.3/14/97), 690 So.2d 39. The final word cannot be written on this chapter until the conflict between Brunet and Gautreaux is resolved.

      . An insidious disease is one that progresses with few or no symptoms to indicate its seriousness. STEDMAN'S MEDICAL DICTIONARY, 711 (4th unabr. lawyers' ed.1976). "In 1930, Dr. Merewether, a pioneer in the area of occupational diseases, demonstrated the particular aptness of this term as a description of the pathogenesis of asbestosis. 'This disease, insidious in its onset, stealthily advances with but faint warnings of its progress: inexorably it cripples the essential tissues of the lungs, yet for a considerable period causes almost no inconvenience to the worker. As time goes on, however, the lungs find more and more difficulty in re-aerating the blood; and breathing is quickened on slight exertion. Still the worker is able to remain at work, but is aware of his undue shortness of breath on extra effort. Usually, however, he ascribes it to causes other than the dust he is inhaling.
      'As the disease progresses, if no acute illness has caused a fatal termination, a stage is reached when the lungs can do little more than maintain life; and the shortness of breath is extreme. Even in its terminal stages, the disease, deceitful to the last, may masquerade as chronic bronchitis, pulmonary tuberculosis, bronchopneumonia, or the like.''' Comment, Liability Insurance for Insidious Disease: Who Picks Up the Tab?, 48 Fordham L.Rev. 657 n. 1, quoting Merewether, The Occurrence of Pulmonary Fibrosis and Other Pulmonary Affections in Asbestos Workers, 12 J. Indus. Hygiene 198, 201-02 (1930).

      . Cole v. Celotex Corp., 599 So.2d 1058, 1065 (La.1992).

      . The sole exception is the court of appeal decision in Austin v. Abney Mills, Inc., 34,495 (La.App. 2 Cir. 4/04/01), 785 So.2d 177, which was subsequently overturned by this court. Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137.


text:
    Gaynell FINNIE, et al., v. Jerry LEBLANC.
    No. 2003-CC-0424.
    Supreme Court of Louisiana.
    Feb. 10, 2003.
   PER CURIAM.

Granted. Although relator has been released by motion for partial summary judgment, that judgment is not final and definitive and it remains subject to modification on appeal. Under these circumstances, the trial court did not err in finding relator had “a right related to or connected with the object of the pending action” for purposes of La.Code Civ. P. art. 1091. Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court granting relator’s petition of intervention is reinstated.

REMANDED.


text:
    In re Judge Yvonne L. HUGHES.
    No. 2003-O-0255.
    Supreme Court of Louisiana.
    Feb. 12, 2003.
   ORDER

On recommendation of the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Judge Yvonne L. Hughes, Judge of the Orleans Parish Juvenile Court, State of Louisiana, be and she hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately-

/&/ Chet D. Traylor Justice, Supreme Court of Louisiana


author: 11PER CURIAM.

text:
    In re Patrick N. DOOLEY.
    No. 2002-B-2152.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

11PER CURIAM.

This attorney disciplinary proceeding arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Patrick N. Dooley, an attorney licensed to practice law in the State of Louisiana. The charges against respondent are based on allegations that respondent failed to properly withdraw from the representation of a client in a personal injury case and neglected to pay an outstanding medical bill. When respondent neglected to file an answer, the charges were deemed admitted pursuant to Supreme Court Rule XIX, § 11(E)(3). The hearing committee and disciplinary board recommended that respondent be suspended from the practice of law for a period of one year and one day.

Although neither party filed an objection to the disciplinary board’s recommendation, we ordered additional briefing. In his brief, respondent asserted that he suffered from severe clinical depression, triggered by the death of several family members, which resulted in the end of his marriage and his inability to work. Respondent stated he had advised the ODC on more than one occasion of his medical problems and asserted his failure to participate in the proceedings stemmed from “paralyzing depression.” He subsequently provided this court with medical records indicating he suffered from depression and other mental health concerns during the general time frame at issue.

Having reviewed the evidence, we conclude there is support for respondent’s position that he was unable to meaningfully participate in the disciplinary | ¡.proceedings. In cases where the respondent’s failure to answer disciplinary proceedings was due to causes beyond his or her control, this court has held application of the “deemed admitted” rule of Supreme Court Rule XIX, § 11(E)(3) may be unduly harsh. See, e.g., In re: Gines, 01-2844 (La.4/19/02), 817 So.2d 1122; In re: Gardner, 98-1476 (La.10/9/98), 719 So.2d 400; In re: Tosh, 98-2152 (La.10/9/98), 719 So.2d 396. Following the reasoning of these decisions, we now set aside the order of the hearing committee deeming the charges against respondent admitted, and remand the case to the hearing committee for a new hearing.

DECREE

For the reasons assigned, the order of the hearing committee deeming the formal charges admitted under Supreme Court Rule XIX, § 11(E)(3) is vacated. The case is remanded to the appropriate hearing committee for a new hearing, at which time respondent should be allowed to participate and present evidence. The committee shall then make a recommendation to the disciplinary board, which shall then submit a new recommendation to this court.


author: PER CURIAM:

text:
    STATE of Louisiana v. Merald SAMPSON.
    No. 2002-KP-0909.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   PER CURIAM:

Writ granted; court of appeal order reversed; case remanded. Whatever the words used in its order, the district court was acting within its discretion when it in effect ordered supplementation of the timely-filed application for post-conviction relief, even if the supplementation were not to arrive until after the expiration of the prescriptive period. State ex rel. Duhon v. Whitley, 92-1740 (La.9/2/94), 642 So.2d 1273; cf. Muntz v. Lensing, 96-0230 (La.3/8/96), 668 So.2d 1147. Accordingly, the court of appeal order finding the application time-barred is reversed and the case is remanded to the district court for further proceedings consistent with its order of December 13, 2001.

CALOGERO, C.J., recused.


text:
    Ethel BROWN on behalf of Craig BROWN, v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2002-CC-2906.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Brown, Ethel on behalf of; Brown, Craig; — Plaintiffis); Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. A, Nos. 43-881; to the Court of Appeal, Fourth Circuit, No. 2002-C-0812.

Denied.

CALOGERO, C.J., Dissents from the denial of the writ and assigns reasons.

CALOGERO, Chief Justice,

dissents from the denial of the writ and assigns reasons.

I would grant the writ and have the court determine whether this matter is distinguishable from LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, in the respect that here the wrongful death action remained in place and had not been dismissed when the medical review panel was sought just short of two years after the incident. If the majority were to find that such is not a relevant distinction, I would reverse this court’s opinion in Le-Breton for the reasons assigned in my dissent in that case.


author: CALOGERO, Chief Justice

text:
    STATE of Louisiana v. Ricky Joseph LANGLEY.
    No. 2002-KP-2158.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Langley, Ricky J.; — -Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, Nos. 10258-02; to the Court of Appeal, Third Circuit, No. KW 02-00716.

Denied.

CALOGERO, C.J., dissents from the denial of the writ application and assigns reasons.

CALOGERO, Chief Justice

Dissents from the Denial of the Writ Application:

I would grant the writ to examine what is clearly a close legal issue, that is, whether the trial judge has discretion to order open file discovery, and particularly whether the district court’s allowing it should be reversed in the absence of abuse of discretion. This court has said that a district court has discretion to order such discovery in State v. Nguyen, 98-1463 (La.6/19/98), 720 So.2d 1209, which was admittedly a summary disposition on a defendant’s writ application, wherein we held that the judge was within his discretion in ordering the open file discovery. The majority here gives short attention to that precedent, apparently unimpressed because it was not the consequence of a authored opinion following briefing and oral argument. It was nonetheless a judgment of this court on which the defendant here relies. Additionally, since this defendant is facing execution upon conviction and sentence, I would much prefer to resolve this legal issue after granting the w:it and assigning it for an opinion.


text:
    Susan Diane Starks ROSS v. Billy Wayne ROSS
    No. 2002-C-2984.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Ross, Susan Diane Starks; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Family Court For The Parish Of East Baton Rouge, No. 122,169; to the Court of Appeal, First Circuit, No.2001 CA 2691.

In Re: Susan Ross applying for Writ of Certiorari and/or Review No. 122,169 on the docket of the Family Court for the Parish of East Baton Rouge and No.2001CA2691 on the docket of the Court of Appeal, First Circuit, State of Louisiana.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “ It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.