author: LPER CURIAM.

text:
    In re Inez F. KERTH.
    No. 2003-B-1811.
    Supreme Court of Louisiana.
    Oct. 31, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

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

PROCEDURAL HISTORY

Some background information is necessary to understand the long and complicated history of these proceedings. On June 30, 1997, the ODC filed two counts of formal charges against respondent, arising out of the Anglin matter. Count I alleged that respondent failed to diligently pursue her client’s legal matter and failed to promptly refund an unearned legal fee. Count II alleged that respondent failed to cooperate with the ODC in its investigation of the complaint filed against her.

Respondent answered the formal charges and denied any misconduct. The matter was set for a formal hearing before a hearing committee in November 1997. The hearing was continued, however, when additional complaints involving respondent came to the ODC’s attention.

The additional complaints became the subject of supplemental and amending formal charges filed by the ODC on August 10, 1998. The amended formal charges originally consisted of two counts. Count III alleged that respondent failed to communicate with a personal injury client and failed to return the chent’s file upon | prequest. Count IV alleged that respondent commingled and converted client funds and failed to cooperate with the ODC in its investigation of her trust account practices.

Respondent answered the amended formal charges and denied any misconduct. The four counts of formal charges then pending against respondent were set for a formal hearing before a hearing committee in December 1998. That hearing was also continued, this time to allow the parties to negotiate discipline by consent. In connection with one such attempt, the ODC dismissed Count III of the supplemental and amended formal charges. Accordingly, that count is not discussed further herein.

On September 13, 2001, when the parties’ efforts at consent discipline had proven fruitless, the disciplinary board remanded the case for a hearing before a hearing committee. The hearing was conducted on January 22, 2002.

DISCIPLINARY PROCEEDINGS

The formal charges considered during the January 22, 2002 hearing are as follows:

Count I — The Anglin Matter

In 1988, respondent represented Lois Anglin in an uncontested divorce from William Anglin. Thereafter, in February 1993, Lois retained respondent to complete the community property settlement. William and Lois each paid respondent $250 to handle the matter. Respondent prepared a community property settlement agreement and documents evidencing the sale of various property between William and Lois. |sThe Anglins signed these documents on March 22, 1993. However, respondent did not file or record the documents, and she failed to respond to numerous telephone calls from the Ang-lins concerning the status of the matter. In December 1994, respondent dosed her law office without notice to the Anglins. The Anglins subsequently retained other counsel, who completed the community property partition in October 1996. In January 1999, respondent refunded $250 each to William and Lois Anglin.

The ODC alleged respondent’s conduct violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.15 (safekeeping property of clients or third persons), 1.16(d) (termination of the representation), 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).

Count II — Failure to Cooperate

In September 1995, William Anglin filed a complaint against respondent with the ODC. The ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling her to appear on December 6,1995 and answer the complaint under oath. Respondent failed to appear, though she finally responded to the complaint by letter dated January 15, 1996. The ODC requested a supplemental response on February 5, 1996. Respondent failed to provide the response requested. |4As a result, the ODC served respondent with a subpoena compelling her to appear on May 7, 1996.

The ODC alleged respondent’s conduct violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 3.4(c) (knowing disobedience of an obligation under the rules of 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), 8.4(d), and 8.4(g) (failure to cooperate with the ODC in its investigation). The ODC further alleged that respondent’s failure to respond to a lawful demand for information from a disciplinary authority constituted a violation of Supreme Court Rule XIX, § 9(c).

Count IV — The Trust Account Matter

In conjunction with its investigation of a complaint filed against respondent, the ODC subpoenaed respondent’s client trust account records from the Whitney National Bank. The bank produced statements covering the period from September 1991 through December 1993. These statements showed a number of discrepancies, including negative balances in the account on numerous occasions between September 1992 and October 1993, and demonstrated that respondent was using her trust account as a personal account. Furthermore, on two occasions in 1993, the balance in the trust account dropped below the amount respondent was holding on her clients’ behalf. The ODC asked respondent to provide an explanation for her improper use of the trust account, but she failed to cooperate in that regard.

|sThe ODC alleged that respondent’s conduct violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.15, 8.4(a), 8.4(c), 8.4(d), and 8.4(g).

Review of the Record

The ODC introduced a volume of documentary evidence in support of the formal charges, the allegations of which were essentially admitted by respondent. In mitigation, respondent testified that “a really horriblfe period in my life” began in 1991. In February of that year, respondent’s mother suffered a ruptured colon, and after a lengthy hospital stay and around the clock nursing by respondent, she died in the summer of 1991. Respondent’s father, who had been previously diagnosed with cancer, suffered with his terminal illness until April 1992. By this time, respondent was emotionally and physically exhausted, and her private law practice had declined considerably, giving rise to severe financial problems, including bankruptcy and a potential foreclosure on her home by the IRS. The IRS eventually seized respondent’s bank accounts and garnished the wages she earned as a part-time employee of the Metropolitan Battered Women’s Program. The problem was further compounded when the garnished wages were not timely sent to the IRS, causing respondent to have to pay additional penalties. As a result of her financial problems, respondent had to move her practice to a smaller office. While that move was taking place, respondent’s car and all of her financial records were stolen. Finally, in 1994, respondent’s former fiancé killed himself a few days after seeing respondent for the first time in many years. In December 1994, respondent closed her private law practice; since 1994, she has worked full-time as a staff attorney for the Metropolitan | (¡Battered Women’s Program. Respondent testified at length concerning the community service work she has performed, and she concluded that her life is now “500 million times better than it was” during the period between 1991 and 1994.

Hearing Committee Recommendation

After considering the evidence presented at the hearing, and respondent’s testimony in mitigation, the hearing committee made detailed factual findings, including the following:

1. In July 1988, respondent represented Lois B. Anglin in an uncontested divorce from William H. Anglin. On February 25, 1993, respondent was retained by Lois Anglin to complete the community property settlement. Respondent quoted a fee of $400 plus filing fees, and the Anglins paid a total of $500. Respondent prepared a community property settlement agreement, a sale of property from Lois to William, and a sale of property from William to Lois. The Anglins executed the instruments on March 22, 1993 in respondent’s office. Respondent did not file or record the instruments, and failed to respond to numerous telephone calls from the Anglins as to the status of the matter. Respondent closed her law practice in December 1994, without notice to the Anglins. She did not refund the $500 until January 1999.
2. On September 25, 1995, respondent was served by certified mail with a copy of the complaint filed by William Anglin. Respondent was asked to specifically account for the fee received and any services performed on behalf of Mr. Anglin. The ODC reminded respondent that she should promptly refund any 17unearned portion of the fee. Respondent failed to submit a response to Mr. Anglin’s complaint, and she was personally served with an investigatory subpoena on November 8, 1995. Respondent did not appear at the designated time and place, and on her advice that she was ill but would submit a written response to the complaint by December 11, 1995, the matter was continued. On January 9, 1996, respondent was reminded that she had not submitted a response to the complaint. On January 12, 1996, she advised the ODC that she would submit a response by January 15, 1996. On January 17, 1996, the ODC again left a message reminding respondent of her failure to submit a response. Respondent’s initial response was received by the ODC on January 18,1996. By letter dated February 5, 1996, respondent was asked to Submit a supplemental response to the complaint. She failed to do so and on April 17, 1996, she was personally served with an investigatory subpoena, by which she was compelled to give a sworn statement on May 7,1996.
3. Respondent’s IOLTA account records for the period September 1, 1991 through December 31, 1993 were obtained from Whitney National Bank by subpoena. At the ODC’s request, Ronald E. White, Audit Consultant, reviewed respondent’s trust account records for 1993. In a report dated April 13, 1998, Mr. White concluded that “respondent used this account as an operating account as well as for personal expenses.” Therefore, commingling occurred every time she deposited client funds into the account. Mr. White found two instances in 1993 where the account balance fell below the amount owed to clients. Respondent’s trust account was closed on March 1,1994.
4. Respondent testified at length about the personal difficulties she encountered during the period of time involved in the matters charged by ODC. Those | sdlfficulties included the long illness and death of her mother in 1991; her subsequent reinvolvement with her.abusive father who himself died in April 1992; the decline and 1994 closure of her private practice; attendant financial difficulties, .including filing personal bankruptcy and IRS seizure of her personal account, which she testified is why she used her exempt client trust account for some personal expenses; the theft of her car, including all her office records which then were kept in it due to her financial distress; the sudden death of a close friend; and the suicide of a former fiancé whom she had just seen.
5. The incidents charged by the ODC occurred during the tail-end of respondent’s private practice. Respondent no longer maintains a private practice; she currently works for the Battered Women’s Program as its only lawyer. Respondent handles battered women’s petitions and related matters, but does not handle money or deal with financial issues.
6. Respondent clearly is committed to the pro bono issues to which she devotes much of her time. She pointed out that her commitment derives in part from her own sometimes turbulent personal experiences. Though her personal situation seems to have stabilized from that she confronted in 1993-94, her testimony was emotionally volatile, fragile, and somewhat ■ histrionic. While that undoubtedly allows respondent to act as an empathetic counselor, it and the extent to which her personal situation deteriorated during the early 1990’s caused the Committee some concern about her ability to handle the affairs of others, as would be required in private practice.
7. Respondent has worked consistently as a volunteer, and later on a low-paid basis, as an advocate for various women’s issues. She has volunteered for the Metropolitan Battered Women’s Program since it started. She has staffed the | (¡Advisory Committee in the Jefferson Parish Coroner’s Office, been appointed to the Governor’s Interagency Committee for the Homeless, NOLAC and supervised Tulane Law Students for community service requirements. She has been widely recognized and lauded for her pro bono efforts.
8. Respondent clearly was remorseful.

Based on these factual findings, the committee determined that respondent neglected the Anglins’ legal matter, failed to communicate with them, and failed to promptly refund an unearned legal fee. The committee also found that respondent failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Anglin. Finally, the committee found that respondent commingled and converted client funds by improperly using her client trust account. Accordingly, the committee determined that respondent violated Rules 1.3, 1.4, 1.5, and 8.4(a) of the Rules of Professional Conduct in connection with Count I of the formal charges; violated Rules 3.4(c), 8.1(c), 8.4(a), and 8.4(g) in connection with Count II; and violated Rules 1.15 and 8.4(a) in connection with Count IV. The committee rejected the remainder of the rule violations charged in the formal charges.

The committee determined the baseline sanction for respondent’s misconduct is a suspension from the practice of law for a period of eighteen months. In aggravation, the committee recognized respon-' dent’s pattern of failing to cooperate with the ODC. As mitigating factors, the committee recognized respondent’s “personal circumstances at the time of the violations, the subsequent voluntary diminution of her practice, her extensive pro bono publico record, her obvious and (the Committee believed, sincere) remorse, and her repayment of the [Anglins’] entire fee (albeit late).”

hoUnder these circumstances, the committee recommended that respondent be suspended from the practice of law for eighteen months, fully deferred, subject to a one-year period of probation governed by specified conditions.

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

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board agreed that the hearing committee’s factual findings are supported by the record. Applying the Rules of Professional Conduct, the board agreed that respondent violated Rules 1.3, 1.4, 1.5, and 8.4(a) of the Rules of Professional Conduct in connection with the Anglin matter. As to Count II, the board observed that respondent admitted she failed to fully cooperate with the ODC in its investigation of the complaint filed by William Anglin. The board determined this conduct violated Rules 3.4(c), 8.1(b), 8.1(c), 8.4(a), and 8.4(g) of the Rules of Professional Conduct and Supreme Court Rule XIX, § 9(c). Finally, as to Count IV, the board agreed that respondent violated Rules 1.15 and 8.4(a) in mishandling her client trust account. The board determined the remainder of the rule violations charged in the formal charges were not proven by clear and convincing evidence.

The board found respondent knowingly and intentionally violated duties owed to her clients, to the profession, and to the legal system. Ms. Anglin was harmed by respondent’s failure to promptly refund the unearned portion of the legal fee she paid and by the delay in the completion of her community property matter. The disciplinary system’s time and resources were wasted by respondent’s failure to cooperate in the Ininvestigation. The potential for serious injury existed when respondent commingled her clients’ property and converted it to her own use.

As aggravating factors, the board recognized respondent’s prior disciplinary offenses, a pattern of misconduct, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. In mitigation, the board recognized respondent’s personal and emotional problems, character and reputation, and remorse. However, the board refused to credit respondent with making restitution to the Anglins, as she did so long after the disciplinary complaint was filed and after having discussions with the ODC concerning the necessity of repayment.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence, in particular Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), the board agreed that an eighteen-month suspension is appropriate in this case. The board also agreed that deferral of the suspension and probation are appropriate in light of the mitigating factors present.

Accordingly, the board recommended that respondent be suspended from the practice of law for eighteen months, fully deferred, subject to a one-year period of probation governed by specified conditions. 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 an objection to the disciplinary board’s recommendation.

DISCUSSION

Respondent has essentially admitted the misconduct charged in the formal charges. The rule violations principally involve failure to communicate with a client, neglect of the client’s legal matter, and failure to promptly refund an unearned legal fee. Respondent also used her client trust account improperly and was less than fully cooperative with the ODC in its attempts to investigate these matters. The sole issue presented for the court’s consideration is whether a fully deferred eighteen-month suspension, subject to a period of probation, is an appropriate sanction for respondent’s misconduct.

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

Clearly, respondent’s conduct was not exemplary. However, in light of the extraordinary mitigating factors present, we find it is appropriate to defer the eighteen-month suspension in its entirety, and to impose a period of probation. We caution respondent that any misconduct during the probationary period may be grounds for l^making the deferred suspension executo-ry, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record filed herein, it is ordered that Inez Frances Kerth, Louisiana Bar Roll number 7352, be suspended from the practice of law for eighteen months. It is further ordered that said suspension shall be fully deferred, subject to an eighteen-month period of probation. Any misconduct during the probationary period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The parties also presented evidence, testimony, and briefing with respect to alleged misconduct by respondent arising out of the Guichard matter. However, that matter was never the subject of formal charges filed by the ODC. As we have previously held, it would be a denial of due process of law to find respondent guilty of charges based on evidence adduced at the hearing if she was not given notice of these charges prior to the hearing. See In re: Williams, 02-2698 (La.4/9/03), 842 So.2d 353; In re: Nevitte, 02-1962 (La.9/30/02), 827 So.2d 1135. Accordingly, we have not considered the uncharged conduct in this case and have made no reference to it in this opinion.

      . On July 23, 1993, respondent deposited $150.00 in client funds into her trust account, but on August 1, 1993, the account balance fell to $109.78, with no client funds having been disbursed in the interim. Similarly, on September 15, 1993, respondent deposited $374.00 in client funds into her trust account, but on September 23, 1993, the account balance fell to $145.27.

      . Ms. Dale Standifer, the Executive Director of the Metropolitan Battered Women’s Program, submitted an affidavit lauding respondent's work with the program and praising her dedication to victims of domestic violence. Ms. Standifer concluded it would be "extremely difficult to replace [respondent] with someone of her level of experience and commitment.”

      . Respondent has twice been admonished by the disciplinary board. In 94-ADB-115, she was admonished for failing to properly terminate a client representation and failing to cooperate with the ODC in its investigation. In 94-ADB-126, she was admonished for failing to cooperate with the ODC in its investigation.


source: Caselaw Access Project

author: hPER CURIAM.

license: Public Domain

text:
    In re James F. QUAID.
    No. 2003-B-1876.
    Supreme Court of Louisiana.
    Oct. 31, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James F. Quaid, Jr., a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Respondent was admitted to the practice of law in Louisiana in 1960. After receiving two formal private reprimands in June 1970, respondent was disbarred effective September 30, 1976, following his conviction of a felony burglary charge in the State of Georgia. Louisiana State Bar Ass’n v. Quaid, 368 So.2d 1043 (La.1979). Respondent was readmitted to the practice of law on May 23, 1983. In re: Quaid, 433 So.2d 179 (La.1983) (on reconsideration). In 1987, respondent received another formal private reprimand.

In In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, respondent was disbarred for charging an excessive fee in a Social Security case and attempting to conceal this misconduct. Our judgment in that matter became final on February 16, 1995, upon the denial of respondent’s application for rehearing. Notwithstanding his disbarment, however, respondent continued to practice law. On September 3, 1999, this court extended by five years the minimum period for respondent to seek 12readmission to the practice of law. In re: Quaid, 98-2089 (La.9/3/99), 740 So.2d 104.

UNDERLYING FACTS

In 1999, Eddie Taylor, a manager of E & R Trust, consulted respondent concerning litigation pending against the trust in Jefferson Parish. Respondent was disbarred from the practice of law at this time, but he offered to handle the case as an “agent” for John H. “Jack” Norman, a Louisiana-licensed attorney who practices in Metairie. Respondent explained to Mr. Taylor that Mr. Norman would appeal the jury verdict that had previously been rendered against Mr. Taylor and the trust, and would oppose a motion filed by an adverse party seeking to have certain costs taxed against the trust. Mr. Taylor agreed to this arrangement, and on March 19, 1999 and April 6, 1999, Mr. Taylor paid respondent a retainer fee totaling $4,000. Mr. Taylor believed that this sum represented Mr. Norman’s legal fee for handling the matter.

On July 13, 1999, respondent wrote a letter to Mr. Taylor, assuring him that “the necessary paper work is being prepared to make Jack Norman counsel of record” in the matter. Sometime in August or September 1999, Mr. Norman formally enrolled as counsel of record on behalf of Mr. Taylor and E & R Trust. Respondent prepared various legal pleadings in the case which were signed by Mr. Norman. However, Mr. Norman failed to appear at the hearing on the motion to tax costs and failed to timely file a brief in the court of appeal. When Mr. Taylor learned of this, he wrote to Mr. Norman requesting a refund of the $4,000 retainer fee he paid to respondent. By letter dated November 8, 1999, respondent informed Mr. Taylor that his letter “should have been directed to me since you hired me, not Jack Norman.” Nevertheless, respondent 13did not refund the retainer fee to Mr. Taylor, who had to retain other counsel to complete the legal matter.

In July 2000, Mr. Taylor filed a complaint with the ODC. Respondent’s reply to the complaint was untimely and inadequate, necessitating the issuance of a subpoena compelling him to appear and answer the complaint under oath.

DISCIPLINARY PROCEEDINGS

Formal Charges

On August 23, 2001, the ODC filed two counts of formal charges against respondent, alleging that his conduct violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.5 (fee arrangements), 5.5 (engaging in the unauthorized practice of law), 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). Respondent answered the formal charges and denied any misconduct.

Hearing Committee Recommendation

This matter proceeded to a formal hearing on the merits. Considering the evidence presented, the hearing committee found as a matter of fact that respondent accepted a $4,000 fee from Eddie Taylor for the preparation and filing of an opposition to a Motion to Tax Costs and for handling an appeal on behalf of Mr. Taylor and E & R Trust. Respondent prepared these legal pleadings and enlisted Jack Norman, a practicing attorney, to sign the pleadings. Respondent was not working as |4a paralegal in Mr. Norman’s office, nor was he supervised by any other licensed attorney when he prepared the pleadings. The committee found that by this conduct, respondent intentionally engaged or attempted to engage in the unauthorized practice of law after he was disbarred.

The committee further found that respondent accepted a fee to perform legal services which he failed to perform. Mr. Taylor’s case was not properly handled, and he was forced to hire another attorney to handle the same matter he believed he had paid to have Mr. Norman handle.

Finally, the committee found that respondent engaged in dishonest and deceitful conduct that was prejudicial to the administration of justice. According to the committee, respondent misrepresented himself to Mr. Taylor and Mr. Norman. He led Mr. Norman to believe that he was retired and not disbarred. He never advised Mr. Norman of his status with the Louisiana State Bar Association and he never advised Mr. Taylor or Mr. Norman of the exact contractual relationship that existed between them, if any. Mr. Taylor thought the $4,000 retainer fee given to respondent was for Mr. Norman; however, Mr. Norman testified that he never received a penny of the $4,000, and that he simply read and signed the pleadings as a favor to respondent.

As to the failure to cooperate charge, the committee found that on June 4, 2001, the ODC forwarded respondent a copy of Mr. Taylor’s complaint and requested a substantive response within fifteen days pursuant to Supreme Court Rule XIX, § 4(B)(2). According to the committee, respondent failed to timely and adequately respond to the complaint. There is no record of a telephone call or letter requesting an extension of time to respond. Respondent finally decided to respond on June 25, 2001, but by this time, the ODC had already requested that a subpoena be served on | ¿respondent. Accordingly, the committee determined that respondent was guilty of failing to cooperate with the ODC.

The committee determined respondent’s conduct violated duties owed to his client, the court, the public, and the profession, and was knowing and intentional. Respondent knew he was disbarred and intentionally conducted himself in violation of the Rules of Professional Conduct. His conduct has caused injury and potential injury to others. Furthermore, the image of the legal profession is tarnished every time a disbarred lawyer attempts to engage or engages in the unauthorized practice of law.

In aggravation, the committee recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. The committee cited no mitigating factors. Under these circumstances, the committee recommended that respondent be permanently disbarred.

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

Disciplinary Board Recommendation

The disciplinary board generally accepted the factual findings of the hearing committee, and agreed that respondent violated the Rules of Professional Conduct as charged in the formal charges. The board determined respondent violated duties owed to his client, the public, and the legal system. He also violated duties owed as a professional. His acceptance of a legal fee, his performance of acts that under the circumstances constitute the practice of law, and his dishonest conduct in enlisting a [^licensed attorney- to sign pleadings were all intentional acts. His failure to cooperate in the ODC’s investigation in a timely and adequate manner was at least knowing. Respondent caused injury to Mr. Taylor in that his legal matter was not handled properly, nor was it completed. Mr. Taylor had to expend additional funds to hire another attorney to complete the work properly. He put Mr. Norman’s law license and reputation in jeopardy. He damaged the public, the legal system, and the profession by his blatant dishonesty. The board determined the baseline sanction for respondent’s misconduct is disbarment.

The board concurred in the aggravating factors cited by the committee, and agreed the record does not support a finding of any mitigating factors.

In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board found that disbarment is an appropriate sanction. However, recognizing that respondent engaged in the unauthorized practice of law while disbarred, the board concluded that the sanction of permanent disbarment is warranted. The board also recommended respondent be ordered to make restitution to Mr. Taylor, and that he 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 |7been 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 detailed factual findings of the hearing committee. It is apparent that respondent has continued to practice law after being disbarred by this court. Furthermore, he compounded his misconduct by failing to properly handle Mr. Taylor’s legal matter, and by failing to cooperate with the ODC in its investigation.

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 conduct clearly violated duties owed to the public, the legal system, and the profession. Unquestionably, the baseline sanction for such misconduct is disbarment. Numerous aggravating factors are present, but we are unable to determine any mitigating factors from the record.

| ^Having found disbarment is the appropriate sanction, the sole remaining issue presented for our consideration is whether respondent’s conduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment.

For purposes of the instant case, Guidelines 8 and 9 are relevant. Those guidelines detail the following conduct:

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.

Guideline 8 is clearly applicable to this case, as the undisputed evidence shows respondent agreed to represent Mr. Taylor after his license to practice law was revoked by this court in 1995. Likewise, Guideline 9 is implicated, as the instant misconduct, which is unquestionably serious attorney misconduct, was preceded by respondent’s disbarment for prior instances of serious attorney misconduct.

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 l^convinced that we would be remiss in our eonstitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent engaged in conduct that was actively intended to frustrate the administration of justice. This court cannot and will not tolerate such conduct by an attorney. Respondent’s actions 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 James F. Quaid, Jr. 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. Respondent is ordered to pay restitution of $4,300 to Eddie Taylor. 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 September 1999, Mr. Taylor paid respondent an additional $300, apparently to cover costs.

      . Mr. Norman was ultimately reprimanded by the disciplinary board for his role in the E & R Trust matter.


text:
    In re Pamela Viney MATHEWS.
    No. 2003-B-3075.
    Supreme Court of Louisiana.
    Jan. 28, 2004.
   ORDER

Considering the “Motion to Stay Proceedings” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that this matter be remanded to the disciplinary board for consolidation with the proceedings numbered 03-DB-076. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.

/s/John L. Weimer

Justice, Supreme Court of Louisiana


author: |,KIMBALL, Justice.

text:
    KEVIN ASSOCIATES, L.L.C. (Successor in Interest through Merger to Yendis Properties, Inc.) v. Brett CRAWFORD, Secretary of the Department of Revenue, State of Louisiana.
    No. 2003-C-0211.
    Supreme Court of Louisiana.
    Jan. 30, 2004.

      Cloyd F. Van Hook, Theodore D. Vick-nair, John J. Weiler, Weiler & Rees, New Orleans, Counsel for applicant.

      Nicole Crighton, Frederick W. Bradley, Oreck, Bradley, Crighton, Adams & Chase, Counsel for Respondent.
   |,KIMBALL, Justice.

Kevin Associates, L.L.C., filed the instant suit against the Louisiana Department of Revenue (hereinafter “the Department”) seeking recovery of certain income and franchise taxes it paid under protest after receiving tax assessments from the Department. Because we find the commercial domicile of the taxpayer was in Louisiana and the imposition of the taxes at issue does not offend the Due Process and Commerce Clauses of the U.S. Constitution, we conclude the taxpayer is not entitled to a refund of the taxes, penalties and interest it paid under protest. The judgments of the lower court to the contrary are reversed.

Facts and Procedural History

This matter involves the former K & B family of corporations. K & B, Inc., a Delaware corporation, was the corporate parent and had three direct subsidiaries: Virginia Corporation, Valerie Corporation, and Yendis Properties, Inc. These three | gsister corporations were incorporated in Delaware in 1991. Virginia Corporation was formed to hold the stock of the K & B operating corporations in various states that managed the activities of the drug stores in the various states. Virginia Corporation was also the parent of K & B Services, Inc., a Louisiana corporation that performed administrative and bookkeeping services for all the K & B corporate entities. Valerie Corporation was formed to hold the intellectual property rights of K & B. Yendis Properties, Inc. (hereinafter “Yendis”) was formed to hold the stock of various subsidiaries that owned real estate in Louisiana and other southern states and to make loans to affiliated corporations. The real estate owned by Yendis’s subsidiaries consisted primarily of store properties that were leased to the drug stores.

The instant suit concerns the tax liabilities of Yendis, which was set up as a Delaware holding company to acquire certain tax advantages. After conducting an audit, the Department issued a proposed deficiency assessment of Louisiana corporate income and franchise taxes plus interest and penalty for taxable years ending September 30, 1994 and September 30, 1995 in the total amount of $1,108,250.83 against Yendis. Yendis paid the assessment under protest and timely filed a Petition for Refund of Tax Paid Under Protest. In its petition for refund of the taxes paid under protest, Yendis alleged it had no liability to pay any Louisiana corporate income or franchise taxes because it did not conduct business within the State of Louisiana during the tax period. Rather, Yendis contended, it maintained its corporate office and domicile in Delaware and conducted its corporate activities in that state. Yendis further alleged its only sources of income were dividends paid to it by its subsidiaries, 13which did business in Louisiana, Mississippi, and Texas, and interest received from loans made to corporations doing business in states other than Louisiana.

After a bench trial, the district court rendered judgment in favor of Yendis, finding Yendis is entitled to a refund of the taxes paid under protest, plus interest and court costs. Although the district court issued written reasons for judgment, the basis for its decision in favor of Yendis remains unclear. The district court stated the issue in terms of whether Yendis is subject to Louisiana corporate income and franchise tax. It then cited the Department’s argument that resolution of this issue turns on the commercial domicile of Yendis. The district court next reiterated Yendis’s arguments that it cannot be taxed by Louisiana unless the tests required under the Due Process and Commerce Clauses are satisfied. Finally, the district court noted that the K & B shareholders devised a plan to form the Delaware corporations to escape taxation in Louisiana and determined there was nothing wrong with .this conduct. After reciting the foregoing, the district court simply rendered judgment in favor of Yendis.

The court of appeal affirmed the judgment of the district court. Kevin Associates, L.L.C. v. Crawford, 01-2652 (La.App. 1 Cir. 11/8/02), 834 So.2d 465. In reaching its decision, the court of appeal explained the concept of commercial domicile, and reviewed the arguments of the parties and the evidence presented in this case. The court of appeal concluded that “the evidence does not reveal manifest error by the trial court in its determination that a sufficient nexus for the establishment of a commercial domicile in Louisiana was not demonstrated.” Id., 01-2652 at p. 5, 834 So.2d at 468-69. Additionally, the court of appeal determined that the record did not show any commercial activities by Yendis that would constitute “doing business” in Louisiana. Finally, the court of appeal stated that a non-resident parent company is not subject to the jurisdiction of Louisiana simply because one of its subsidiaries exists l4in this state. For these reasons, the court of appeal affirmed the determination of the district court that Yendis was entitled to a refund, with interest, of the taxes paid under protest.

We granted certiorari upon the Department’s application to consider the correctness of the lower courts’ judgments that Yendis was entitled to a refund of the Louisiana taxes it paid under protest. Kevin Associates, L.L.C. v. Crawford, 03-0211 (La.4/21/03), 847 So.2d 1177.

Discussion

The facts in this case are largely undisputed. The ultimate issue, whether the Department can properly require Yendis, a Delaware holding company, to pay Louisiana corporate income and franchise taxes, is, in this particular case, a legal one to be decided by applying the correct legal standards to the facts of this matter.

Prior to trial, the parties executed a stipulation of facts that are binding upon both parties. The parties stipulated that during the taxable years at issue, K & B, Inc. was incorporated in and had legal domicile in Delaware and had three wholly-owned first-tier subsidiaries, Yendis, Valerie Corporation, and Virginia Corporation, that were also incorporated in and had legal domicile in Delaware. The parties further stipulated that during the taxable years at issue, the officers of Yendis were Sydney J. Besthoff, III, chairman of the Board; James J. LeBlane, President; Ronald J. Dyer, Treasurer and Assistant Secretary; Virginia F. Besthoff, Secretary and Assistant Treasurer; and Robert Meyer, Assistant Secretary. With the exception of Robert Meyer, all members of the board of directors and the officers of Yendis were residents of New Orleans, Louisiana. Robert Meyer was a resident of Delaware and a partner in the Delaware law firm of Bayard, Handelman & Mur-dock, P.A. The parties also stipulated that Yendis had a bank account with PNC Bank in Delaware and the authorized signatories over Rthis account during the years at issue were Sydney J. Besthoff, III, James LeBlanc, Virginia Besthoff, and Ronald Dyer. Robert Meyer was not an authorized signatory of Yendis’s Delaware bank account. Another stipulation entered into by the parties was that during the taxable years at issue, funds were transferred by wire in and out of the Delaware bank accounts of Yendis, Valerie Corporation, and Virginia Corporation. Sydney J. Besthoff, III, James LeBlanc, Virginia Besthoff, Ronald Dyer, and Jan Raley, all residents of Louisiana, were authorized to issue wire instructions in reference to Yen-dis’s Delaware bank account. Robert Meyer, a director and officer of Yendis, did not have wire transfer authority over Yendis’s Delaware bank account. The parties further stipulated that all wire transfer instructions to PNC Bank in Delaware regarding Yendis’s bank account were initiated in New Orleans, Louisiana. An additional stipulation was that, during the taxable years at issue, Yendis had no employees in the State of Delaware. Finally, the parties stipulated that during the years at issue, Yendis had executed with Bayard, Handelman & Murdock, P.A. an equipment lease for one drawer of a four-drawer file cabinet with lock and an Agreement for Provision of Services.

The undisputed testimony presented at trial revealed that Yendis claimed the address of Robert Meyer’s law firm as its Delaware address. Yendis’s name was not listed on the building’s directory, but K & B was listed on the directory. The reception area of the address was of a typical law firm and did not have anything with Yendis’s name displayed. The law firm’s receptionist was unfamiliar with Yendis. Yendis’s original records were maintained in Delaware, in the leased file cabinet drawer. Yendis received mail from the Delaware Secretary of State and PNC Bank at its Delaware address. The mail was forwarded from Mr. Meyer’s office to K & B Services at K & B Plaza in New Orleans, Louisiana. The forms were completed in Louisiana and were | ^mailed back to the Delaware Secretary of State directly from New Orleans. Additionally, the bank statements were reconciled in New Orleans and then the original records were sent back to Delaware.

In a consolidated federal tax return for the K & B group of corporations prepared by Arthur Andersen’s New Orleans office, Yendis’s address was listed as that of K & B Plaza in New Orleans. Evidence at trial showed instances in which Yendis used letterhead for its correspondence showing its address as K & B Plaza in New Orleans. Yendis’s witnesses claimed the use of this letterhead was a clerical error. Yendis also received correspondence from Arthur Andersen at the New Orleans address.

Yendis had no employees. Yendis received income in the form of dividends declared by its subsidiaries. The dividends declared by Yendis’s subsidiaries were received into Yendis’s Delaware bank account. Yendis then loaned the money received as dividends to its sister corporation, Virginia, and received interest income from those loans. Although Yendis made loans only to Virginia Corporation, the minutes of its November 26, 1991, annual meeting do not indicate that the corporation was restricted to making loans solely to Virginia. The minutes state that Yendis was “formed in August 1991 in order to receive dividends from its subsidiaries and make loans to affiliated debtor corporations.” The minutes further provide that the loans would be made pursuant to a “Master Borrowing Note Agreement to other affiliated or subsidiary entities operating in K & B, Incorporated’s 7-state area.” In July of every year, Ronald Dyer and Sydney Besthoff, III determined how the funds loaned by Yendis to Virginia were to be transferred within the corporate family and prepared a schedule of accounting for the various transactions. The actual funds were transferred within the corporate family in one day and began and ended in the K & B Services New Orleans account. The decisions regarding the transactions were made by Mr. Dyer |7and Mr. Besthoff at K & B Plaza in New Orleans, Louisiana. Wire transfers were executed in accordance with the schedule in Louisiana. After execution of the wire transfers, Mr. Dyer and Mr. Besthoff wrote and signed confirmation letters to the Delaware bank in Louisiana. Additionally, Mr. Dyer prepared annually in Louisiana a checklist showing the activities that were to take place for Yendis.

Most of the annual board of directors’ meetings were held in Delaware in the conference room of Mr. Meyer’s law firm. Several meetings were held in New Orleans, with Mr. Meyer participating by telephone. The minutes of meetings were prepared in New Orleans before the meetings took place and were used as an agenda for the meetings. They were revised as necessary after the meeting was conducted. Additionally, several unanimous consents of the board of directors were executed in lieu of meetings. The unanimous consents generally dealt with Yendis’s approval of its subsidiaries’ actions as a stockholder. The unanimous consents were prepared by a New Orleans Law firm.

Based on these facts, the Department contends that Yendis can be required to pay Louisiana corporate income and franchise taxes because the corporation was managed from Louisiana, and, therefore, was commercially domiciled in Louisiana. The Department argues that corporate records and management decisions for Yendis were actually made in Louisiana. The Department asserts that although Yendis claims it had an office in Delaware, its alleged office was only a mailing address for Mr. Meyer’s law firm. Furthermore, the Department contends, Yendis rented only one drawer of a four-drawer file cabinet located in Mr. Meyer’s firm, and the rental of this drawer cannot be considered rental of office space in Delaware. The Department argues that the decisions regarding the flow of funds among the corporations and the authorizations for the wire transfers were managerial decisions that were made in IsLouisiana. The Department also claims that all board of director activity regarding Yendis’s management of its subsidiaries was undertaken in Louisiana. According to the Department, Yendis is subject to Louisiana corporate income and franchise tax because its commercial domicile is in Louisiana.

Yendis, on the other hand, takes the position that its commercial domicile cannot be assigned to Louisiana. It asserts its sole purpose as a holding company was to receive dividends from its subsidiaries and to lend the received dividends to Virginia Corporation on an annual basis. Yendis contends its corporate plan was automatic and was directed and performed entirely within Delaware. Yendis further argues the activities of Mr. Dyer and Mr. Besthoff were ministerial in nature and were undertaken as employees of K & B Services, which was the paymaster for the entire group of K & B corporations. Finally, Yendis contends that the imposition of Louisiana corporate income and franchise taxes would offend the Due Process Clause and the Commerce Clause of the U.S. Constitution.

It is undisputed by the parties that under Louisiana income and franchise tax statutes, La. R.S. 47:243 and La. R.S. 47:606, the income and capital at issue in this case is allocable to the commercial domicile of the taxpayer. The concept of commercial domicile is an exception to the general rule that the. situs of intangibles is at the legal domicile of the owner. North Baton Rouge Dev. Co., Inc. v. Collector of Revenue, 304 So.2d 293 (La.1974); United Gas Corp. v. Fontenot, 241 La. 564, 129 So.2d 776 (1961). In North Baton Rouge Development Co., we explained commercial domicile as a concept “employed to permit the taxation of property of activity of Nonresident corporations by the state in which managerial activities occurred in quantity and character sufficient to avoid contention of a nonresident corporation that taxation of its activities and property located outside the bounds of |9the taxing state amounted to deprivation^ of property without due process of law.” North Baton Rouge Dev. Co., 304 So.2d at 297. A commercial domicile exists where the corporation maintains a “paper domicile” in the state of incorporation such that the sole function performed in the incorporating state is to “breathe life into the corporation, while the corporation actually functions and is managed from offices maintained in another state.” United Gas Corp. v. Fontenot, 241 La. 488, 508, 129 So.2d 748, 755-56 (1961) (internal quotations omitted). Thus, a corporation may acquire a commercial domicile outside the state of its incorporation when it does not operate at its legal domicile, but maintains in another state its principal business office from which its management functions. United Gas Corp. v. Fontenot, 241 La. 564, 571, 129 So.2d 776, 778 (1961).

A commonly used definition of the term “commercial domicile” is “the place from which the business is directed or managed.” Michael J. McIntyre et al., Symposium: Designing a Combined Reporting Regime for a State Corporate Income Tax: A Case Study of Louisiana, 61 La. L.Rev. 699, 727 n. 90 (2001) (citing Unif. Div. of Income for Tax Purposes Act § 1(b), 7A U.L.A. 331 (1985)). The concept underlying commercial domicile has been explained as follows:

[ I]t is the better view to ignore the mere semblance of a domicile of a corporation created by technical compliance with the legal requirements of the incorporating state, i.e., a technical or “paper” domicile, and to permit, for tax purposes, the substantial domicile of the corporation, based on the actual commercial practices of the particular corporation, to prevail, since that state is, obviously, furnishing the bulk of governmental protection to the corporation.

United Gas Corp. v. Fontenot, 241 La. at 509, 129 So .2d at 756.

The concept of commercial domicile as explained above has been incorporated into the Louisiana Department of Revenue Regulations. In its original brief to this 11flcourt, Yendis states that the regulation defining the concept of commercial domicile was accepted by both parties “and effectively defined the battleground at trial.” Br. at 14. The regulation provides:

Commercial Domicile is in that state where management decisions are implemented which is presumed to be the state where the taxpayer conducts its principal business and thereby benefits from public facilities and protection provided by that state. Commercial domicile cannot be assigned to a state where the taxpayer has no substantial operation or facility, other than the location of one or more management level employees. The location of board of directors’ meetings is not presumed to create commercial domicile at the location.

LAC 61:I.306(A)(l)h.iii.

The facts of the instant case demonstrate that, as a holding company, Yen-dis engaged in little or no corporate activity on a daily basis. However, we find a consideration of the material facts, which are essentially undisputed, as a whole reveal that the commercial domicile of Yen-dis was in Louisiana. When management of Yendis was required, the management was undertaken in and directed from Louisiana.

As memorialized in the November 1991 corporate minutes, Yendis was formed to receive dividends from its subsidiaries and to make loans to affiliated debtor corporations. The dividends Yendis received from its subsidiary corporations were to be loaned to debtor corporations under a Master Borrowing Note Agreement through banking arrangements with the Bank of Delaware on a repetitive basis. Yendis’s witnesses testified this business purpose was thoroughly discussed at its annual meeting held in Delaware. Yendis contends that it carried out this purpose “on autopilot” and all tasks performed relative to the receipt of dividends and the making of loans were administrative tasks performed by employees of K & B Services. The record reveals, however, that management decisions and activities related to the making of the loans occurred in Louisiana.

InAlthough a corporation is a juridical person with a personality distinct from that of its members, La. C.C. art. 24, it only acts through its officers, employees, and other agents. Doe v. Parauka, 97-2434, p. 5 n. 5 (La.7/8/98), 714 So.2d 701, 705 n. 5. Each year, Mr. Dyer prepared and Mr. Besthoff approved a schedule indicating the dividends to be paid to Yendis by each subsidiary, the loan to be made to Virginia, and the loans Virginia, in turn, was to make to its subsidiaries. The schedule was developed and approved in Louisiana and outlined the procedure to be used and the documents to be produced. In making this annual schedule, Mr. Dyer and Mr. Besthoff, both officers and directors of Yendis, were in effect conducting the business of Yendis, which was to receive dividends and make loans to Virginia. Yendis claims that these activities were merely administrative and that Mr. Dyer and Mr. Besthoff performed these duties as employees of K & B Services. We disagree. Although we recognize the difficulties of pinpointing the exact capacities in which Mr. Dyer and Mr. Besthoff acted due to the fact that they held myriad positions in various corporations within the K & B corporate group, we find the scheduling of the loans to Virginia constituted a management activity on the part of Yen-dis’s management. The schedule involved a determination of how the funds would flow for bookkeeping purposes. The funds began in the New Orleans bank account of K & B Services. K & B Services transferred the funds to the bank account of Yendis’s subsidiary, which declared them as dividends and transferred the funds to Yendis’s Delaware bank account. Yendis wired the dividends it received to Virginia’s bank account as a loan, and the funds were then transferred back to the account of K & B Services. These transfers were all made during the course of one day.

Mr. Besthoff testified that after the schedule was developed and approved, the next step was its implementation. The instructions for the wire transfers from Yendis 112to Virginia were initiated in New Orleans. After verbal authorization for the wire transfers was given, Mr. Dyer, as Treasurer, and Mr. Besthoff, as Chairman, sent written confirmation to Yendis’s Delaware bank. These instructions, too, were initiated in New Orleans. The activities undertaken by Yendis’s officers and directors concerning the wire transfer instruction constituted management of Yen-dis’s business affairs. Furthermore, in addition to being management activities in and of themselves, the wire transfer instructions, which came from Louisiana, implemented the management decisions made in Louisiana regarding the schedule of the transfer of funds. This implementation of management decisions serves to satisfy, at least in part, the definition of commercial domicile contained in the Department’s regulations.

As a holding company, part of Yendis’s business was authorizing certain actions of its subsidiaries. The authorization was often provided through the use of a unanimous consent of the board in lieu of meetings. These unanimous consents were prepared in Louisiana. The unanimous consents contained in the record generally relate to Yendis’s function as the sole shareholder of the stock of its subsidiaries. For example, one unanimous consent in lieu of meeting authorized the transfer of all of Yendis’s shares of stock in its subsidiary BOK Corporation to another subsidiary, Yendis Realty, Inc. The unanimous consents were not initiated by the Delaware director, Mr. Meyer, and were presumably conceived in Louisiana by one of the Louisiana directors, who then directed Louisiana counsel to prepare them.

Yendis, as a holding company, had little activity anywhere. However, our reading of the record as a whole convinces us that the substantial management activities that did occur took place in Louisiana. Yen-dis’s funds were controlled from New Orleans in K & B Plaza. Its management determined in New Orleans that authorizations of its subsidiaries’ actions were in order - and had the appropriate | ^documentation prepared. The minutes of Yendis’s Delaware board meetings were drafted in New Orleans prior to the meeting and used as an agenda for the meeting. Yendis used, from time to time, the New Orleans address of its corporate headquarters as its own address. All of these factors, taken together, lead us to the conclusion that Yendis’s principal place of business was in K & B Plaza in New Orleans, Louisiana.

Yendis’s “office” in Delaware consisted of nothing more than one drawer of a file cabinet. Although it received mail at the address of the law firm in which the file cabinet was located, the mail was collected and forwarded to New Orleans. Once the business presented by the mail was taken care of in New Orleans, the records were sent back to Delaware for storage. Yendis kept many of its original documents in the file drawer, but some documents, including minutes of meetings, were missing. Yen-dis had a bank account in Delaware into which it received dividends from its subsidiaries, but the bank account was managed from New Orleans. Yendis conducted some of its board meetings at Mr. Meyer’s law firm in Delaware, but this factor alone is not determinative of commercial domicile. The undisputed testimony and evidence presented in this case, as a whole, shows that Yendis maintained a “paper domicile” in Delaware while it actually functioned from K & B Plaza in New Orleans. Because Yendis’s commercial domicile was in Louisiana, it is subject to Louisiana corporate income and franchise taxes.

The determination that Yendis is subject to Louisiana corporate income and franchise taxes because its commercial domicile is in Louisiana does not run afoul of the Due Process and Commerce Clauses of the U.S. Constitution. In Quill Corp. v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992), the Supreme Court held that, for 114purposes of taxation, the nexus requirements of the Due Process and Commerce Clauses are not identical because the two Clauses have different constitutional concerns and policies. The Court explained that due process concerns the fundamental fairness of governmental activity and requires some definite link or some minimum connection between a state and the person, property or transaction it seeks to tax. Here, the record reveals that Yendis was managed in and functioned from Louisiana. It is therefore clear that Yendis had substantial contacts with Louisiana and the Due Process Clause does not preclude Louisiana from imposing corporate income and franchise taxes on Yendis. In contrast to that of the Due Process Clause, the nexus requirement of the Commerce Clause concerns the effects of state regulation on the national economy and is a means for limiting state burdens on interstate commerce. A tax will be sustained against a Commerce Clause challenge so long as the tax is applied to an activity with a substantial nexus with the taxing state, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the state. Id., 504 U.S. at 311, 112 S.Ct. at 1912 (citing Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326 (1977)). In the instant case, Yendis’s principal place of business was in Louisiana and the corporation was managed in Louisiana. It therefore had a physical presence in Louisiana such that a substantial nexus for purposes of the Commerce Clause was established. As a corporation with a presence in the state, Yendis received protection and benefits from the state. There is no evidence to suggest that the tax is not fairly apportioned or that it discriminates against interstate commerce. We therefore find the imposition of Louisiana corporate income and franchise taxes on Yendis does not violate the Commerce Clause.

In the instant case, the district court determined that Yendis was not subject to [ 1Bthe taxes sought to be imposed by the Department. The basis for its decision is not clear. The court of appeal, however, concluded that the district court determined that a “sufficient nexus for the establishment of a commercial domicile in Louisiana was not demonstrated.” The court of appeal found no manifest error in the district court’s determination of a lack of “sufficient nexus.” However, because this particular case contained no dispute of the material facts and involved the determination of a legal issue, the court of appeal erred in utilizing the manifest error standard of review. See State v. Payne, 01-3196, p. 6 (La.12/4/02), 833 So.2d 927, 933 (“[T]he legal findings of the trial court are subject to review without the great deference standard we attach to credibility determinations.”). The district court in this case was not called upon to exercise its fact-finding function due to the stipulation of facts entered into by the parties and the nature of the material undisputed facts presented through evidence and testimony at trial. However, its judgment contained an erroneous application of the law. In this situation, reviewing courts are not to apply the manifest error standard of review, but rather are to apply the de novo legal standard of review. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071 (La.1983) (“[I]f the trial court’s decision was based on its erroneous interpretation or application of law rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference.”).

Here, applying the correct standard of review, we conclude the lower courts erred in their application of the law of commercial domicile to the facts of this case. While we recognize a business’s ability to structure its affairs so as to minimize taxation, we find Yendis’s principal place of business was in Louisiana. We additionally find that Yendis functioned in and was managed from Louisiana. Consequently, the commercial domicile of Yendis was in Louisiana. The Louisiana corporate income and franchise taxes sought to be imposed on Yendis does not | ^conflict with the protections of the Due Process or Commerce Clauses of the U.S. Constitution. We therefore conclude that Yendis is not entitled to a refund of the taxes, penalties and interest it paid under protest.

In the last page of its original brief to this court, the Department prayed for attorney fees pursuant to La. R.S. 47:1512. The issue of attorney fees pursuant to La. R.S. 47:1512 was not contained in the Department’s application for certiorari and was not briefed or argued in this court and will therefore not be considered. See generally Boudreaux v. DOTD, 01-1329 (La.2/26/02), 815 So.2d 7.

Decree

For the reasons assigned, we find the commercial domicile of Yendis was in Louisiana. We also conclude that the Louisiana corporate income and franchise taxes sought to be imposed on Yendis does not conflict with the protections afforded by the Due Process or Commerce Clauses of the U.S. Constitution. Yendis is therefore not entitled to a refund of the taxes, penalties and interest it paid under protest. The judgments of the lower courts to the contrary are hereby reversed.

Reversed.

      . Kevin Associates, L.L.C., is the successor by merger to Yendis. As a result of the merger in 1997, Yendis no longer has a separate corporate existence. Its rights and obligations, including alleged tax liabilities, were assumed by Kevin Associates. However, because the tax liabilities at issue were assessed against Yendis and the corporation under review in this case is designated as "Yendis” throughout the record, we will continue to refer to the entity at issue as Yendis in this opinion.

      . Some of the exhibits presented in this case contain suggestions from various sources concerning ways to establish a holding company that is subject to taxation only in the state of incorporation. We express no opinion as to whether the wholesale adoption of each suggestion would lead to a different conclusion in this case.

      . La. R.S. 47:1512, entitled "Power to employ counsel," provides:
      The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.


author: PER CURIAM.

text:
    Zander SUMRALL, III v. William Cole BICKHAM, et. al.
    No. 2003-CC-2965.
    Supreme Court of Louisiana.
    Jan. 30, 2004.
   PER CURIAM.

Granted and remanded to the First Circuit Court of Appeal for briefing, argument and opinion solely on the issue of whether a plaintiffs settlement with an insured eliminates an insurer’s obligation to pay the plaintiff according to the terms that the policy would otherwise require.

JOHNSON, J., would deny the writ.


author: hTRAYLOR, Justice. 11VICTORY, J.,

text:
    STATE in the Interest of D.W.
    No. 2003-CK-2754.
    Supreme Court of Louisiana.
    Jan. 30, 2004.
    Walter M. Sanchez, Lorenzi, Sanchez & Palay, Lake Charles; David J. Utter, New Orleans, Christopher Eades, Counsel for Applicant.
    Charles C. Foti, Jr., Attorney General, Robert Bryant, District Attorney, Cynthia C. Guillory, Lake Charles, Carla S. Sigler, Mary H. Hammett, River Ridge, Martha S. Morgan, Baton Rouge, Counsel for Respondent.
   hTRAYLOR, Justice.

We granted certiorari in this matter to consider whether the Louisiana Children’s Code requires that modification hearings in juvenile court be conducted in private. For the reasons which follow, we answer that question in the negative, reverse the courts below, and remand to the juvenile court.

FACTS and PROCEDURAL HISTORY

D.W. was adjudicated delinquent in the district juvenile court on February 14, 2003. After a disposition hearing held on March 28, 2003, he was committed to the custody of the Department of Public Safety and Corrections until his twenty-first birthday as mandated by Article 897.1 of the Louisiana Children’s Code. D.W. was subsequently transferred to the Jetson Correctional Center for Youth in accordance with the disposition order.

On June 4, 2003, D.W.’s counsel filed an emergency motion for review of D.W.’s disposition in the juvenile court, alleging that conditions at Jetson were unsafe. Prior to the hearing, the parties disagreed as to whether the hearing was to 19be open to the public or not open to the public. On September 29, 2003, after a contradictory hearing, the juvenile court ruled that the hearing would be closed. The court of appeal denied D.W.’s application for writ of review on October 3, 2002.

DISCUSSION

The issue in the matter is whether the Louisiana Children’s Code requires that all proceedings, or merely the adjudication hearing, in juvenile delinquency cases which involve delineated crimes of violence be open to the public.

Generally, when interpreting a statute, courts begin with the premise that legislation is the solemn expression of legislative will and that, therefore, the interpretation of a law involves a search for the legislature’s intent. La. Civ. C. art. 1; Falgout v. Dealers Truck Equipment Co., 98-3150, p. 2 (La.10/19/99), 748 So.2d 399, 401. When a law is clear and unambiguous and its application does not lead to absurd results, the law shall be applied as written and no further interpretation shall be made in search of the legislature’s intent. La. Civ. C. art. 9; Falgout, 98-3150 at p. 2, 748 So.2d at 401. “Where a new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law.” Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 888.

The starting point for the interpretation of any statute, then, is the language of the statute itself. Touchard v. Williams, 617 So.2d 885, 889 (La.1993). Here, the statutes at issue are Articles 407 and 879 of the Louisiana Children’s Code.

Article 407 provides:

Art. 407. Confidentiality of hearings
A. With the exceptions of delinquency proceedings pursuant to Article 879, child support proceedings, traffic violations pursuant to Chapter 2 of Title IX in parishes with a population between three ^hundred eighty thousand and four hundred thousand, and misdemean- or trials of adults pursuant to Chapter 4 of Title XV, proceedings before the juvenile court shall not be public. However, the court shall allow the proceedings to be open to the public when the alleged delinquent act committed by the child would be considered a crime of violence as defined in R.S. 14.2(13), or when the alleged delinquent act would be a second or subsequent felony-grade adjudication.
B. The child, his parents, counsel, the district attorney, authorized officers of the court, and witnesses called by the parties may be present at an adjudication hearing. The court may admit any other person who has a proper interest in the proceedings or the work of the court. In delinquency proceedings involving the violation R.S. 14:30, first degree murder; R.S. 14:30.1, second degree murder; R.S. 14:42, aggravated rape; R.S. 14:44, aggravated kidnapping [sic]; or R.S. 14:64, armed robbery; the court shall admit the victim and the victim’s spouse, children, siblings, and parents.

La. Ch. C. art. 407.

D.W. argues that the phrase “the court shall allow the proceedings to be open to the public” mandates that all proceedings involving the specified crimes of violence be open to the public. The state takes the contrary opinion, arguing that the language contained in the latter part of Paragraph A, referring to an “alleged delinquent act” and an “adjudication,” along with Paragraph B’s reference to an “adjudication hearing,” make clear that the statute does not apply to all proceedings in juvenile cases involving the specified violent offenses, but only to adjudication hearings.

Article 879, the second statute at issue, reads in pertinent part:

Art. 879. Presence at adjudication hearing; exclusion of witnesses
A. The child, his parents, counsel, the district attorney, authorized officials of the court, and witnesses called by the parties may be present at the adjudication hearing.
B. All proceedings in a juvenile delinquency case involving a|4crime of violence as defined in R.S. 14:2(13) or a delinquent act which is a second or subsequent felony-grade adjudication shall be open to the public.
* * *

La. Ch. C. art. 879.

Again, D.W. argues that the legislature’s use of the words “all proceedings in a juvenile delinquency case” means just that, all proceedings, to include disposition and post-disposition hearings. The state, on the other hand, argues that the plain language of the title of the statute, “Presence at adjudication hearing ...,” specifically details that the statute only applies to adjudication hearings.

In order to determine the legislature’s intent in enacting the statutes, it is helpful to consider the statutes’ respective legislative histories. As originally enacted, Article 407(A) stated that “[ejxcept as provided in delinquency proceedings pursuant to Article 879, juvenile proceedings shall not be public,” La. Ch. C. art. 407(A) (1992), while Article 879(C) provided that “[o]n motion of the child, the adjudication hearing shall be public.” La. Ch. C. art. 879(C) (1992). When read together, the statutes closed to the public all proceedings in juvenile cases except adjudication hearings in which the child moved for an open hearing.

In 1992, the legislature amended Article 407(A) to add child support proceedings and misdemeanor trials of adults in juvenile court to the open hearing exception. La. Ch. C. art. 407(A) (1993). Article 879 remained unchanged.

The legislature amended both statutes in 1994. The following language was added to Article 407(A): “However, the court shall allow the proceedings to be open to the public when the alleged delinquent act committed by the child would be considered a crime of violence as defined in R.S. 14:2(18), or when the alleged delinquent act would be a second or subsequent felony-grade adjudication.” La. Ch. C. art. 407(A) (1995). The new version of Article 897(C) read: “On motion of the child, or when the alleged delinquent act committed by the child would be considered a crime of violence as defined in R.S. 14:2(13), or when the alleged delinquent act would be a second or subsequent felony-grade adjudication, the adjudication hearing shall be public.” These amendments added specified crimes to the open hearing exception but retained the language specifically limiting the exception to adjudication hearings. La. Ch. |fiC. art. 407(A) (1995).

The legislature again amended Article 879 in 1995, completely rewriting Paragraph C and re-designating it as Paragraph B as follows: “All proceedings in a juvenile delinquency case involving a crime of violence as defined in R.S. 14:2(13) or a delinquent act which is a second or subsequent felony-grade adjudication shall be open to the public.” La. Ch. C. ait. 879(B) (1996). This amendment both eliminated the discretion of the child to waive public closure and replaced the language specifically restricting the open hearings exception to “adjudication hearing[s]” with “[a]ll proceedings in a juvenile delinquency case ...” No further amendments have been made to either article.

The state argues that the two statutes continue to restrict the open hearings exception to adjudication hearings only. As stated earlier, however, “[wjhere a new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law.” Brown, 721 So.2d at 889. The 1996 and earlier iterations of Article 879 specifically restricted the open hearing exception to adjudication hearings. The 1995 amendment changed the specific language, “adjudication hearing,” to the less restrictive “[a]ll proceedings in a juvenile delinquency case.” Clearly, the phrase “[a]ll proceedings in a juvenile delinquency case” means more than merely adjudication hearings, but applies to disposition and [^modification hearings, as well.

DECREE

For the foregoing reasons, the rulings of the trial and appellate courts are reversed. The matter is remanded to the juvenile court for disposition not inconsistent with this opinion.

REVERSED AND REMANDED.

VICTORY, J., concurs and assigns reasons.

CALOGERO, C.J., concurs for reasons assigned by VICTORY, J.

KNOLL, J., concurs in result. "

11VICTORY, J.,

concurring.

I respectfully concur. In my view, Article 879 of the Louisiana Children’s Code is not applicable to this non-adjudication hearing because it is limited by both its title (Adjudication) and its text (both sections A and B use the term “adjudication”) to adjudication hearings. Nonetheless, the last sentence of Article 407(a) controls and requires that the instant hearing, if properly before the juvenile court, be open to the public.

      . D.W. seeks review of the disposition order based upon Article 909 of the Louisiana Children's Code, which grants the juvenile court the general power to modify orders of disposition. The state has filed several exceptions in the matter, including exceptions of improper venue, lack of jurisdiction, and no cause of action. None of these issues are before this court at this time. The juvenile court has removed D.W. from the Jetson Correctional Institute for Youth and placed him in the Lake Charles Juvenile Detention Center pending disposition of the matter.

      . In brief, however, the state broadens its argument, saying that the statutes at issue "unquestionably do not relate to the post-disposition phase of a juvenile case ...,” implying that the statutes do, indeed, apply to disposition hearings as well as adjudication hearings.


text:
    In re Jerry L. SETTLE.
    No. 2003-OB-3366.
    Supreme Court of Louisiana.
    Feb. 3, 2004.
   ORDER

Considering the application for admission to the practice of law filed by petitioner, Jerry L. Settle, and the January 13, 2004 correspondence from the Director of Character and Fitness of the Committee on Bar Admissions, indicating that the Committee no longer- objects to the certification of petitioner for admission to the practice of law,

IT IS ORDERED that petitioner be and he hereby is granted admission to the practice of law in Louisiana.

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana