author: STRINGER, Judge.

text:
    Alexander EDISON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4177.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Alexander Edison seeks review of his habitual felony offender (“HFO”) sentence for possession of a firearm by a convicted felon. We reverse Edison’s HFO sentence because the State failed to prove that Edison’s qualifying convictions were sequentially and separately obtained.

In order to qualify as a prior felony for HFO sentencing, the prior felony conviction must have been sentenced separately from the current offense and any other prior felony convictions. § 775.084(5), Fla. Stat. (2000). Under section 775.084(5), the sentencing for separate prior felony convictions for unrelated crimes can occur on the same day, but the sentences cannot be entered as part of the same sentencing proceeding. Bover v. State, 797 So.2d 1246, 1250 (Fla.2001). It is the State’s burden to prove that a defendant qualifies as an HFO. Wainer v. State, 798 So.2d 885, 886 (Fla. 4th DCA 2001).

In this case, the State presented evidence that Edison was adjudicated guilty of four prior felonies on October 22, 1997, which was prior to the sentencing hearing. Although each felony had a different case number, the record does not establish that the sentences were entered as part of different sentencing proceedings. In fact, from the transcript of an October 22, 1997, sentencing hearing contained in the record, it appears that the charges in one case resulted in three violations of probation at the same sentencing proceeding. Although Edison did not object to his HFO sentence during sentencing, he has preserved the issue for review by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

Because the record does not establish that the qualifying convictions were sentenced separately, the State has not met its burden of proving that Edison qualified as an HFO. Accordingly, we reverse. On remand, the State may again seek HFO treatment, if applicable. Tyler v. State, 826 So.2d 1103, 1104 (Fla. 2d DCA 2002); May v. State, 713 So.2d 1087, 1088 (Fla. 2d DCA 1998).

Reversed and remanded.

NORTHCUTT and KELLY, JJ„ Concur.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Maly KEO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5582.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      Frank Louderback of Louderback & Helinger, St. Petersburg, for Appellant.
   COVINGTON, Judge.

Maly Keo challenges the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. In her motion, Keo raised multiple grounds for relief. We affirm without comment the summary denial of all of Keo’s claims except for one. That claim concerns the allegation that Keo’s counsel was ineffective for advising her to enter a plea without reviewing documents she gave to him that would have constituted a valid defense. We find that Keo stated a sufficient claim under this ground, which the trial court did not refute in its order. We therefore reverse and remand.

In support of her allegation that counsel was ineffective, Keo detailed the information and documents provided to counsel that would have established a defense to the charges. That information included: (a) that the alleged victims had been repaid all they were owed; (b) that the business matters that were the subject of the charges were conducted at arms length; (c) that the alleged victims had falsified documents upon which the charges were based and had charged usurious and illegal interest in the transactions; and (d) that Keo lacked any fraudulent intent in any of the transactions that were the subject of the charges.

The trial court, relying on Panagiotakis v. State, 619 So.2d 345 (Fla. 2d DCA 1993), found Keo’s claim facially insufficient. Panagiotakis, however, cannot be read to require more than what Keo detailed in her rule 3.850 motion. Keo averred that she lacked any fraudulent intent and provided counsel with documents and information to corroborate her claim. Moreover, she claimed that the alleged victims had falsified documents upon which • the charges rested. These allegations were sufficient under Panagiotakis, 619 So.2d at 345, because the information established a reasonable probability that Keo would be exonerated. The reasonable probability test does not require Keo to prove that she would have been acquitted, as the trial court suggested.

Despite finding Keo’s allegations facially insufficient, the trial court reviewed the content of the documents and determined that Keo had not proven that she would have been acquitted or convicted of a lesser-included offense if the jury had seen the documents. These documents, however, are not part of the record on appeal and were not attached to the trial court’s order.

Because Keo stated a facially sufficient claim for ineffective assistance of counsel and because the trial court did not refute this claim, we reverse and remand for the trial court to either attach records that conclusively refute Keo’s claim or conduct an evidentiary hearing.

Reversed and remanded.

STRINGER and CANADY, JJ., concur.


author: WALLACE, Judge.

text:
    Catherine DECKER, Appellant, v. James D. LYLE, Appellee.
    No. 2D03-1774.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant.
    Eileen H. Griffin of Griffin & Associates, P.A., Brandon, for Appellee.
   WALLACE, Judge.

Catherine Decker (“the mother”) appeals the trial court’s order awarding temporary custody of the parties’ minor child to James D. Lyle (“the father”). We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). Because the record does not reflect that the trial court considered and addressed the best interests of the minor child in making the temporary custody award, we reverse and remand.

At the time of the minor child’s birth, the parties were not married but had been living together for some time. Approximately four months after the child was born, the relationship of the parties became troubled. On April 25, 2002, the mother left Florida with the minor child to return to her home state of Indiana. Shortly after arriving in Indiana, the mother filed a petition in the Indiana court system to establish the paternity of the child and to seek support from the father. The father responded to the Indiana petition and filed a similar petition in Florida. In her answer to the Florida petition, the mother conceded that the father was the natural father of the child and requested that she be awarded custody and child support. On July 11, 2002, the Indiana court determined that Florida was the proper jurisdiction to hear the matter and accordingly dismissed the mother’s petition for lack of jurisdiction.

On October 4, 2002, the father filed in the Florida proceedings a motion for immediate return of and temporary custody of the child seeking the following relief: (1) requiring the mother to return the child to the jurisdiction of the court; (2) awarding the father temporary primary residential responsibility of the parties’ minor child with reasonable rights of visitation to the mother; (3) ordering the mother to immediately return the parties’ minor child to the care of the father; (4) enjoining and restraining the mother from permanently removing the minor child, or allowing anyone else to remove the minor child, from the State of Florida; (5) ordering the mother to pay the father’s attorney’s fees and costs; and (6) granting any further relief the court deemed fair and equitable.

At the temporary hearing on the father’s motion, the mother and the father testified on a variety of subjects, including the following: the parties’ financial support of the child, child care arrangements, visitation, and the manner in which the parties’ relationship had deteriorated. After the parties completed the presentation of the evidence, the trial judge commented on the mother’s “surreptitious” relocation to Indiana and the need for the child to have “meaningful contact” with both parents. Nevertheless, the trial judge did not address the issue of the best interests of the child.

I. Best Interests

On appeal, the mother argues that the temporary custody award was improper because the record fails to reflect that the trial court considered the best interests of the child in making the temporary custody award. We agree. The shared parental responsibility law, section 61.13, Florida Statutes (2002), applies to custody disputes between unmarried parents as well as married parents. See Stepp v. Stepp, 520 So.2d 314 (Fla. 2d DCA 1988). Although separate findings as to each factor in section 61.13(3) are not required to sustain a temporary award, nevertheless, the record or the final judgment must reflect that the custody determination was made in the best interests of the child. See Williams v. Williams, 845 So.2d 246 (Fla. 2d DCA 2003); Ryan v. Ryan, 784 So.2d 1215 (Fla. 2d DCA 2001); Julian v. Bryan, 710 So.2d 1037 (Fla. 2d DCA 1998); Bader v. Bader, 639 So.2d 122 (Fla. 2d DCA 1994) (en banc); Armstrong v. Panzarino, 812 So.2d 512 (Fla. 4th DCA 2002). Neither the transcript of the trial court’s oral pronouncement of its ruling nor the temporary custody order (which merely incorporated by reference the trial court’s oral pronouncement) addresses the best interests of the child. Therefore, we must reverse and remand the case for a further hearing.

II,Relocation

The mother also asserts that the trial court erred in not considering the relocation factors set forth in section 61.13(2)(d)(l)-(6) in making its temporary custody determination. However, this is not a relocation case in the strict sense. There was no court order in existence at the time the mother left the state to move to Indiana with the child. See generally Mian v. Mian, 775 So.2d 357 (Fla. 2d DCA 2000).

Nevertheless, relocation factors are to be considered as part of the court’s evaluation of “all factors affecting the welfare and interests of the child.” Id. at 359 (quoting § 61.13(3), Fla. Stat. (1999)). Furthermore, a trial court should make this consideration at the earliest opportunity. Id.; see also Garone v. Parks, 668 So.2d 307, 308 (Fla. 4th DCA 1996). Upon remand, the trial court should consider the statutory relocation factors as part of its evaluation of the best interests of the child.

III.Impermissible Factors

Finally, the mother contends that the trial court based its custody award on impermissible factors, to wit: (1) to equalize the amount of time the child would spend with each parent pending a final hearing in the case and (2) to sanction the mother for relocating with the child to Indiana absent prior notice to the father or court approval. (Based upon the record available to us, there does not appear to have been any legal impediment to the mother’s relocation to Indiana.)

Our disposition of this case makes it unnecessary to reach the mother’s argument on this point. Nevertheless, for the guidance of the trial court and the parties on remand, we note that the decision of the trial court on the issue of temporary custody must be based upon the best interests of the child and not as a sanction for the conduct of either of the parties. LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131 (Fla. 2d DCA 1999); O’Neill v. Stone, 721 So.2d 393 (Fla. 2d DCA 1998); Armstrong v. Panzarino, 812 So.2d 512 (Fla. 4th DCA 2002).

IV.Relief

The father argues that we should let the custody- order stand in - order to avoid “unnecessary upheaval in the minor child’s life.” We are sensitive to the need to minimize disruptions to the custodial arrangements for the child. See Potter v. Haffner, 561 So.2d 1 (Fla. 2d DCA 1990). Therefore, while we reverse the trial court’s order granting temporary custody of the minor child to the father and remand this case to the trial court for a further hearing on this issue, temporary custody of the child shall remain with the father until such a hearing is completed. Furthermore, as in Williams v. Williams, 845 So.2d 246, 249 (Fla. 2d DCA 2003), the trial court must hold such a hearing within twenty days from the issuance of our mandate unless the parties agree to hold this hearing at a later time.

Reversed and remanded.

CANADY and VILLANTI, JJ., concur.


author: PER CURIAM.

text:
    Larry HORTON, Petitioner, v. James V. CROSBY, Jr., etc., Respondent.
    No. 3D03-597.
    District Court of Appeal of Florida, Third District.
    July 10, 2003.
    Larry Horton, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for respondent.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   PER CURIAM.

Larry Horton seeks a ■writ of habeas corpus. We grant the writ because the trial court’s reason for its departure from the sentencing guidelines is invalid.

In 1985, respondent State of Florida charged Horton with two counts of lewd and lascivious conduct in case number CFM85-165. Horton pled guilty to one of these counts. The trial court withheld adjudication and placed Horton under community control for two years followed by five years of probation.

On July 13, 1988, Horton was arrested on an unrelated matter in Broward County. He subsequently pled guilty to four counts of lewd and lascivious conduct. The trial court sentenced him to fifteen years in prison.

On July 15, 1988, the State charged Horton in Monroe County with a violation of probation in case number CFM85-165 for the 1988 arrest in Broward County. It also lodged a detainer against Horton on June 8, 1989 while he served his fifteen year sentence in Broward County. Horton completed his Broward county sentence on December, 31, 1994 after having served 2028 days or approximately five and one-half years. He was then returned to Monroe County for the 1988 probation violation.

In Monroe County, Horton served seventy-six days from December 31, 1994 to March 16, 1995. On March 16, 1995, he entered an admission of violation of probation for his 1988 arrest and the trial court revoked his probation, adjudicated him guilty of lewd and lascivious conduct in case number CFM85-165, and placed him under community control for three months, to be followed by ten years of probation.

On October 7, 1999, Horton was arrested in Monroe County for yet another violation of probation and the State charged him with downloading child pornography. In that proceeding, the trial court granted Horton’s motion to suppress the evidence and thus, Horton was not convicted of this separate charge.

On September 13, 2002, the trial court held a sentencing hearing to determine Horton’s sanction for his second violation of probation in case number CFM85-165. The trial court determined that Horton had accumulated 158 points for his criminal conduct. This placed him in the first cell in the sentencing guidelines — any non-state prison sanction. The trial court entered an upward departure sentence on September 25, 2002 of fifteen years of incarceration and relied upon Horton’s failure to rehabilitate as the only reason for the departure sentence.

The prohibition against ex post facto laws has been recognized by the Florida Constitution. The court must apply the laws in effect at the time in which the crime was committed to the case before it. Allen v. State, 383 So.2d 674, 675 (Fla. 5th DCA 1980); Castle v. State, 330 So.2d 10, 11 (Fla.l976)(defendant not entitled to be sentenced under later enacted law which reduced maximum penalty for his crime). In this case, at the time in which Horton committed the offense in case number CFM85-165, the failure to rehabilitate standing alone was a valid reason to depart from the sentencing guidelines. See Burgess v. State of Florida, 491 So.2d 1167, 1168 (Fla. 2d DCA 1986). However, rule 3.701(d)(11), Florida Rules of Criminal Procedure (1983), in effect at the time in which the instant offense was committed, prohibits departures when the reasoning depends on offenses for which convictions have not been obtained.

In this case, the trial court judge based his reasoning for the departure sentence on Horton’s failure to rehabilitate. He explained that Horton “went from looking at pornographic magazines and videos to becoming an expert on internet child pornography and where to obtain it.” Horton, however, was not convicted of downloading child pornography. The trial court’s reason for the departure sentence is thus invalid.

The trial court, however, was correct in twice increasing the guideline cells, one cell for each violation of probation, without providing a reason. Rule 3.701(d)(14), Florida Rules of Criminal Procedure, permits a sentence imposed after revocation of probation to be increased to the next cell and does not require a reason for the departure sentence. The Florida Supreme Court interpreted the rule to mean that the trial court may bump up one cell for each violation of probation. See Williams v. State, 694 So.2d 273, 275 (Fla.1992). Consequently, the maximum legal sentence Horton could have received without requiring a reason for the departure was three and one-half years of incarceration.

During the September 13, 2002 hearing, the trial court awarded Horton credit for 1159 days served. Horton has thus been incarcerated far in excess of three and one-half years, and is now serving an illegal sentence.

We therefore grant habeas corpus relief and remand the case for further proceedings consistent with this opinion.

      . He also appeals from an order of probation revocation and sentence of imprisonment in case number 3D02-2838. That appeal is now moot.

      . The State nolle pressed the second count.

      . On September 13, 1995, Horton filed a motion for writ of coram nobis and/or motion for post conviction relief and/or motion to correct illegal sentence and/or motion to set aside and vacate plea and/or conviction. The trial court denied Horton's motion and Horton appealed that denial to this Court which per curiam affirmed Horton’s judgment and sentence. The Florida Supreme Court likewise later affirmed the judgment and sentence.

      .Fla. Const, art. 10, § 9.

      . The transcript of the sentencing hearing and the trial court's minutes indicate this credit. The sentencing scoresheet, however, awards Horton only 480 days.


author: LPER CURIAM.

text:
    In re Harry E. CANTRELL, Jr.
    No. 2003-B-0910.
    Supreme Court of Louisiana.
    May 2, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, Harry E. Cantrell, Jr., an attorney licensed to practice law in Louisiana. For his misconduct, respondent proposed that he be suspended from the practice of law for one year and one day, fully deferred, subject to an eighteen-month period of supervised probation with conditions. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

UNDERLYING FACTS

The Defillo Matter

In December 1998, Cheryl Defillo filed a complaint against respondent with the ODC. Ms. Defillo alleged that she retained respondent to represent her in a claim for workers’ compensation benefits and Social Security disability benefits arising from a 1989 workplace accident, and in a personal injury matter stemming from a 1993 automobile accident. The workers’ compensation matter went to trial and an adverse judgment was rendered against Ms. Defil-lo. Respondent appealed the judgment, but the appeal was not timely filed and it was ultimately dismissed by the court of appeal. Respondent failed to advise his client concerning the status of her case, and he failed to promptly advise her that she was entitled to seek independent counsel with respect to his failure to file the appeal timely.

|¡>Ms. Defillo initially represented herself in the Social Security matter. Following a hearing, an administrative law judge denied Ms. Defillo’s claim for Social Security disability benefits. Thereafter, Ms. Defillo alleges that she requested respondent’s assistance in appealing the adverse ruling. Respondent admits making a few telephone calls on Ms. Defillo’s behalf, but contends that he never agreed to handle the Social Security matter. In any event, no appeal was timely filed in Ms. Defillo’s Social Security case.

Finally, at some point during Ms. Defil-lo’s personal injury litigation, the defendant insurance company became insolvent. After this fact was brought to respondent’s attention, he delayed in filing a claim with LIGA on his client’s behalf. Eventually, after a claim was filed, respondent failed to track its progress and to keep Ms. Defillo informed about the status of the matter.

The Knightshead Matter

Murphy Knightshead retained respondent to represent him in a tort suit arising from a 1991 workplace fistfight, and in a personal injury matter stemming from a 1994 automobile accident. In the tort matter, respondent filed a petition alleging that Mr. Knightshead’s former employer, Avondale Industries, was liable for the intentional tort of one of its employees, with whom Mr. Knightshead had been involved in a fistfight. However, respondent apparently took no further action in the case, and it was ultimately dismissed.

In the personal injury matter, respondent erroneously filed suit in an improper venue. After the suit was transferred to the proper venue, the defendants filed an 13exception of prescription and the case was dismissed. While respondent’s appeal of the judgment of dismissal was pending, Mr. Knightshead filed a complaint against respondent with the ODC, alleging that he was unaware of the status of the case. One month later, the court of appeal affirmed the dismissal of the tort suit on grounds of prescription. Respondent failed to promptly advise Mr. Knightshead that he was entitled to seek independent counsel with respect to his failure to handle the case properly.

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

The ODC conducted an investigation into the complaints filed against respondent. Prior to the institution of formal charges, respondent filed a petition for consent discipline, admitting his conduct violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.8 (prohibited transactions between a lawyer and a client), and 3.2 (failure to expedite litigation). For his misconduct, respondent proposed that he be suspended from the practice of law for one year and one day, fully deferred, subject to an eighteen-month period of supervised probation with the following conditions:

1. Respondent shall respond to all reasonable requests of his probation monitor.
2. Respondent shall refrain from any violations of the Rules of Professional Conduct.
3. Respondent shall establish and maintain an effective calendaring system and method to communicate with clients and shall obtain the assistance of the Louisiana State Bar Association’s Loss Prevention Counsel, the LSBA’s Practice Assistance Counsel, and his probation monitor in the creation of a proper law office management program.
|44. Respondent shall enroll in and attend one full day of Ethics School administered by the LSBA’s Practice Assistance and Improvement Committee.
5. Respondent shall maintain current in the law during his period of probation by satisfying all annual MCLE requirements in a timely fashion, and he shall timely pay his bar dues and the disciplinary assessment.
6. Respondent agrees that any violation of any terms or conditions set forth shall result in a summary revocation of probation.
7. Respondent is responsible for all ordinary costs of the disciplinary process and consent proceedings, consistent with Supreme Court Rule XIX, § 10.1.

The ODC concurred in respondent’s petition for consent discipline.

Disciplinary Board Recommendation

The disciplinary board found that by violating Rules 1.3, 1.4, 1.8, and 3.2 of the Louisiana Rules of Professional Conduct, respondent violated duties owed to his clients and to the legal system. The board observed that although the record contains little information concerning respondent’s state of mind, his conduct appears to have been negligent or knowing. As a result of his conduct, respondent caused damage in the form of delay and frustration to his clients. Because it was unlikely that Ms. Defillo’s appeal of the workers’ compensation and Social Security matters would have been successful, it does not appear that she sustained serious injury due to respondent’s misconduct. The same can be said relative to the likelihood of success of Mr. Rnightshead’s intentional tort suit against Avondale. With respect to Mr. Knightshead’s personal injury matter, the complainant (with the benefit of the advice of independent counsel) has reached a monetary settlement with respondent. Finally, in addition to the damage sustained by his clients, respondent also caused damage to |fithe legal system by failing to expedite litigation. The baseline sanction for such misconduct is a suspension from the practice of law.

Based upon its review of the record, the board determined the aggravating factors present include a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1981). In mitigation, the board recognized the absence of a prior disciplinary record, absence of a dishonest or selfish motive, and a cooperative attitude toward the disciplinary proceedings. After reviewing the pri- or jurisprudence of this court dealing with misconduct similar to respondent’s, the board determined the proposed consent discipline is appropriate. Accordingly, the board recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to an eighteen-month period of supervised probation governed by the conditions set forth in the petition for consent discipline.

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

J^DISCUSSION

Although this matter arises from a petition for consent discipline, Supreme Court Rule XIX, § 20(B) provides that the extent of discipline to be imposed is subject to review. In determining an appropriate 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 neglect of client matters and failure to communicate with clients is conduct which falls below the high ethical standard expected of attorneys licensed to practice law in this state. Furthermore, after engaging in the misconduct, respondent failed to promptly advise his clients of their right to seek independent counsel with respect to his malpractice. The baseline discipline for this misconduct is clearly a suspension from the practice of law. However, respondent’s actions were unintentional and were not the product of any dishonest or improper motive on his part. As noted by the disciplinary board, we have frequently imposed deferred suspensions coupled with supervised probation under those circumstances. Such an approach gives the lawyer an opportunity to correct the problems which caused the misconduct, while at the same time protecting the public from future misconduct. See In re: Phelps, 02-1837 (La.9/30/02), 827 So.2d 1140.

Accordingly, we will accept the petition for consent discipline, and impose a fully deferred suspension, subject to probation with conditions.

^DECREE

Upon review of the petition for consent discipline, the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that Harry E. Cantrell, Jr., Louisiana Bar Roll number 3852, be suspended from the practice of law in Louisiana for a period of one year and one day. It is further ordered that said suspension shall be fully deferred, subject to respondent’s successful completion of an eighteen-month period of supervised probation governed by the conditions set forth herein. Any violation of the conditions of probation or any other 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.

      . Respondent has suggested that any appeal of either the adverse Social Security ruling or the adverse workers’ compensation ruling would not have been successful on the merits, given that both the administrative law judge and the workers’ compensation hearing officer had found Ms. Defillo and her treating physician lacking in credibility. While respondent's assessment may be correct, the weakness of Ms. Defillo’s case does not excuse his misconduct.

      . The board considered four cases. In In re: Phelps, 02-1837 (La.9/30/02), 827 So.2d 1140, this court accepted a petition for consent discipline imposing a fully deferred one year and one day suspension, subject to a two-year period of supervised probation with conditions, for the respondent’s neglect of legal matters, failure to communicate with clients, and failure to expedite litigation. The aggravating factors present included a prior disciplinary record, pattern of misconduct, multiple offenses, and vulnerability of the victims. The mitigating factors present included a cooperative attitude toward the proceedings, inexperience in the practice of law, and remorse. The respondent's misconduct was not the result of a dishonest or improper motive; though it caused frustration to his clients, no permanent harm resulted.

        Inin re: Beauchamp, 02-1389 (La.6/13/02), 821 So.2d 1281, the respondent was suspended for one year and one day, fully deferred, subject to a two-year period of supervised probation with conditions, for neglecting legal matters, failing to communicate with clients, and failing to expedite litigation. The respondent’s actions were negligent and noted to have stemmed largely from poor management of her law office.
      In In re: Dunn, 98-0535 (La.6/5/98), 713 So.2d 461, the respondent was suspended for six months, fully deferred, for allowing a client’s case to be dismissed on grounds of abandonment and then attempting to monetarily settle his liability with the client.
      Finally, in In re: Thompson, 98-0079 (La.5/8/98), 712 So.2d 72, the respondent was suspended for one year, fully deferred, subject to an eighteen-month period of supervised probation with conditions, for allowing a client’s case to prescribe and then attempting to monetarily settle his liability with the client. The parties stipulated the mitigating factors present included no prior disciplinary record, full and free disclosure to the ODC, and inexperience in the practice of law.


author: hPER CURIAM.

text:
    In re Bernard J. HARDY.
    No. 2003-B-0443.
    Supreme Court of Louisiana.
    May 2, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

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

UNDERLYING FACTS

Count I

On November 12, 1999, this court accepted a petition for consent discipline suspending respondent from practice for a period of six months, fully deferred, subject to an eighteen-month period of supervised probation and completion of an additional five hours of continuing legal education in the area of law office management. Respondent was also assessed with all costs and expenses in the matter in accordance with Supreme Court Rule XIX, § 10.1. In re: Hardy, 99-2952 (La.11/12/99), 744 So.2d 1287 (“Hardy I ”). Subsequently, the disciplinary board appointed attorney F. Barry Marionneaux to serve as respondent’s probation monitor. Respondent failed to reply to correspondence from Mr. Marionneaux or to return his telephone calls. Respondent also failed to obtain the additional five hours of continuing legal education required by lathe court’s order in Hardy I, nor did he pay the costs and expenses of that disciplinary proceeding.

The ODC alleges respondent’s conduct violates Rules 1.1(b) (failure to comply with the mandatory continuing legal education requirements), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.3(a) (failure to report professional misconduct), and 8.4(a) (violation of the Rules of Professional Conduct) of the Louisiana Rules of Professional Conduct.

Count II

Respondent was ineligible to practice law in Louisiana for the periods of July 31, 1986 through May 10, 1991; again from June 1, 1992 through May 27, 1993; again from August 6, 1998 through October 7, 1998; and again from August 1, 1999 through August 16, 2000. These periods of ineligibility stemmed from respondent’s failure to pay his bar dues and the disciplinary assessment and to comply with the mandatory continuing legal education requirements.

The ODC alleges respondent’s conduct violates Rules 1.1(b), 8.3(a), 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Louisiana Rules of Professional Conduct.

| Count III

In April 2000, Cathy Griffin retained respondent to represent her son in two criminal matters. Respondent also assisted his client in recovering legal fees paid to Ms. Kevin James, the attorney who formerly handled the criminal cases. In connection with this representation, respondent drafted pleadings, filed motions into the court record, and negotiated a settlement of Ms. Griffin’s claims against Ms. James, including the withdrawal of disciplinary and civil complaints. Respondent did not advise Ms. Griffin or Ms. James that he was ineligible to practice law during this time.

The ODC alleges respondent’s conduct violates Rules 1.4 (failure to communicate with a client), 1.7(b) (conflict of interest), 1.16(a) (termination of the representation), 3.3 (candor toward the tribunal), 3.4(c), 5.5 (engaging in the unauthorized practice of law), 8.3(a), 8.4(a), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) of the Louisiana Rules of Professional Conduct.

Count IV

During the periods when respondent was ineligible to practice law, he filed pleadings or made appearances in numerous matters pending in the 19th Judicial District Court for the Parish of East Baton Rouge.

The ODC alleges respondent’s conduct violates Rules 1.4,1.7(b), 1.16(a), 3.3, 3.4(c), 4.1 (making a false statement of material fact to a third person), 5.5, 8.3(a), 8.4(a), 8.4(c), and 8.4(d) of the Louisiana Rules of Professional Conduct.

| DISCIPLINARY PROCEEDINGS

On September 17, 2001, the ODC filed four counts of formal charges against respondent. Respondent timely answered the formal charges and denied any misconduct. Specifically, respondent asserted that he had not intentionally failed to cooperate with his probation monitor and that he was financially unable to pay the costs of Hardy I. With respect to Counts II and III, respondent maintained that he had a misunderstanding with the Louisiana State Bar Association regarding the number of CLE credits he obtained, and that as soon as he was informed his credits were delinquent, he took immediate steps to cure the delinquency. Finally, respondent denied he filed pleadings or made court appearances after he learned that he was ineligible to practice law because of his CLE deficiency.

Hearing Committee Recommendation

After considering the evidence and testimony presented at the formal hearing, the hearing committee made the following factual findings:

1. F. Barry Marionneaux, respondent’s probation monitor, attempted on numerous occasions to contact respondent by certified mail and phone, to no avail.

2. Respondent failed to contact Mr. Mar-ionneaux during his eighteen-month period of probation, even though he knew the identity of his probation monitor and that he was under a Louisiana Supreme Court mandate to fulfill its previous disciplinary order.

3. During April 2000, respondent was retained and performed legal services for Cathy Griffin on behalf of her son, Ashly Griffin, at a time when he was ineligible to practice law.

I f,4. Respondent failed to comply with the continuing legal education requirements mandated by the Louisiana Supreme Court as part of his original consent discipline proceeding.

5. Respondent failed to pay the costs and expenses of the earlier disciplinary proceeding.

Based on these factual findings, the committee found that respondent failed to comply with the minimum continuing legal education requirements, a violation of Rule 1.1(b) of the Louisiana Rules of Professional Conduct; failed to cooperate with his probation monitor, a violation of Rule 3.4(c); and engaged in the unauthorized practice of law during a period of ineligibility, a violation of Rules 5.5, 8.4(a), 8.4(c), and 8.4(d). The committee made no findings as to the alleged violations of Rules 1.4,1.7(b), 1.16(a), 3.3, 4.1, and 8.3(a).

The committee determined that respondent violated duties owed to his clients, the public, the legal system, and the profession. The committee noted three aggravating factors are present, namely respondent’s prior disciplinary offense in Hardy I, his refusal to acknowledge the wrongful nature of his conduct, and his indifference to making restitution. The committee acknowledged respondent’s testimony that he suffers from depression and has had financial problems that prevented him from making restitution or otherwise complying with his professional obligations; however, the committee ultimately concluded that these facts should not be considered in mitigation, because “the evidence and testimony weighs heavily against Respondent, and ... much of Respondent’s testimony is simply not credible.”

|fiBased on this reasoning, the committee recommended that respondent be suspended from the practice of law for a period of eighteen months, followed by a one-year period of supervised probation with conditions.

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

Disciplinary Board Recommendation

The disciplinary board agreed that the hearing committee’s factual findings are supported by the record. With respect to the committee’s application of the Louisiana Rules of Professional Conduct, the board determined the committee correctly applied Rules 1.1(b), 3.4(c), 5.5, 8.4(a), 8.4(c), and 8.4(d). However, the board also found respondent failed to communicate with Ms. Griffin, a violation of Rule 1.4; failed to withdraw from numerous cases in the 19th JDC, despite his ineligibility to practice law, a violation of Rule 1.16(a); and filed pleadings in the Ashly Griffin matter during his period of ineligibility, a violation of Rules 3.3 and 3.4(c). The board found no violations of Rules 1.7(b) and 8.3(a) were established. The board made no findings as to the alleged violation of Rule 4.1.

The board found the aggravating factors present include respondent’s prior disciplinary offense in Hardy I, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and indifference to making restitution. In mitigation, the board recognized respondent’s health and financial problems during the time of the misconduct at issue.

In fight of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board concluded the sanction proposed by |7the committee is too lenient. Accordingly, the board recommended that respondent be suspended from the practice of law for two years and ordered to make restitution to Ms. Griffin. 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.

One board member dissented in part, noting that he would not recognize respondent’s personal problems as a mitigating factor.

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. Y, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While 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 Inapplicable 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.

We agree that the factual findings of the hearing committee are well supported by the evidence. We also agree that these factual findings support the disciplinary board’s conclusion that respondent has violated the Louisiana Rules of Professional Conduct.

Having found professional violations, we now turn to a determination of the appropriate sanction for this misconduct. In determining an appropriate 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).

In cases in which an attorney has engaged in the practice of law while ineligible to do so for failing to pay bar dues or failing to comply with the mandatory continuing legal education requirements, this court has imposed suspensions to disbarment, with the baseline sanction generally being a one year and one day suspension from the practice of law. See In re: Richard, 00-1418 (La.8/31/00), 767 So.2d 36 (disbarment imposed upon an attorney without a prior disciplinary record who engaged in the practice of law while ineligible for more than six years); In re: Withers, 99-2951 (La.11/19/99), 747 So.2d 514 (six-month suspension imposed upon an attorney without a prior disciplinary record who represented a client while ineligible, became involved in a “highly improper” relationship with her client, and failed to cooperate with the ODC in its investigation); In re: Grady, 99-0440 (La.4/9/99), 731 So.2d 878 (one [3year and one day suspension imposed upon an attorney who failed to terminate a representation after he became ineligible and failed to advise his client of the status of her case; numerous aggravating factors present); In re: Brough, 98-0366 (La.4/3/98), 709 So.2d 210 (one year and one day suspension imposed upon an attorney who practiced law while ineligible, filed a suit without a good faith basis for doing so, and failed to cooperate with the ODC in its investigation; numerous aggravating factors present); In re: Jones, 98-0207 (La.3/27/98), 708 So.2d 413 (one year and one day suspension, with six months deferred, imposed upon an attorney who practiced law while ineligible; numerous aggravating factors present); and In re: Geiss, 97-1726 (La.9/26/97), 701 So.2d 967 (one year and one day suspension imposed upon an attorney who practiced law while ineligible, neglected a legal matter, failed to communicate with his client, and failed to refund an unearned fee).

The aggravating factors present in this case include respondent’s prior disciplinary record, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of his conduct, substantial experience in the practice of law (admitted 1982), and indifference to making restitution. These aggravating factors far outweigh the solitary mitigating factor present. Under these circumstances, we agree that the disciplinary board’s recommendation of a two-year suspension and restitution is appropriate. If and when respondent applies for reinstatement, the board may consider recommending probation and other conditions as appropriate. Additionally, if and when respondent applies for reinstatement to the practice of law, he shall demonstrate he has satisfied all conditions set forth by this court in Hardy I.

|inDECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Bernard J. Hardy, Louisiana Bar Roll number 1406, be suspended from the practice of law in Louisiana for a period of two years. It is further ordered that respondent shall refund any unearned portion of the legal fee paid to him by Cathy Griffin. If and when respondent applies for reinstatement, the board may consider recommending probation and other conditions as appropriate. Additionally, if and when respondent applies for reinstatement to the practice of law, he shall demonstrate he has satisfied all conditions set forth by this court in In re: Hardy, 99-2952 (La.11/12/99), 744 So.2d 1287. 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 fact, respondent obtained only 9.7 hours of CLE in the year 2000; the annual CLE requirement is 15 hours. The records of the Louisiana State Bar Association reflect that respondent has obtained no CLE since May 2001, when he completed 12.4 hours.

      . It appears from the record that the costs and expenses of Hardy I totaled $1,240.54. One payment of $100 was received toward this sum on October 11, 2000; however, respondent has made no further payments.

      . Respondent is presently ineligible to practice law, and has been so since July 26, 2001.

      . Respondent has never refunded to Ms. Griffin the legal fees she paid during the period respondent was ineligible to practice law.

      . The board primarily relied upon In re: Withers, 01-0967 (La.5/4/01), 786 So.2d 724, and In re: Wyche, 00-0029 (La.3/31/00), 756 So.2d 311. In Withers, the respondent was ineligible to practice law stemming from her failure to pay her bar dues and the disciplinary assessment and to comply with the mandatory continuing legal education requirements. While ineligible, the respondent met with a client and accepted legal fees to handle a criminal matter. She subsequently neglected the matter and refused to comply with the client's request for a refund of the fees. This court accepted a petition for consent discipline disbarring the respondent.
      In Wyche, this court suspended the respondent for three years for appearing in open court on behalf of a client while he was ineligible to practice law. The respondent also concealed his ineligibility to practice from the trial judge. In an unrelated matter, the respondent neglected his client's case and failed to keep her informed of the status of the case, and failed to cooperate with the ODC in its disciplinary investigation.


text:
    In re Russell David LEVY.
    No. 2003-OB-1031.
    Supreme Court of Louisiana.
    May 27, 2003.
   ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Russell David Levy, Louisiana Bar Roll number 23168, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Russell David Levy for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

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

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


text:
    In re Bryan Christopher HURD.
    No. 2003-B-1074.
    Supreme Court of Louisiana.
    May 27, 2003.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent, Bryan Christopher Hurd,

IT IS ORDERED that Bryan Christopher Hurd, Louisiana Bar Roll number 22451, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Bernette J. Johnson

Justice, Supreme Court of Louisiana


author: JjPER CURIAM.

text:
    In re John Sellmann HILBERT.
    No. 2003-B-0370.
    Supreme Court of Louisiana.
    May 30, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

Pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“0DC”) has filed a motion for reciprocal discipline against respondent, John Sell-mann Hilbert, an attorney licensed to practice law in the States of Louisiana and California, based upon discipline imposed by the Supreme Court of California.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In July 2000, respondent and the Office of the Chief Trial Counsel of the State Bar of California entered into a consent discipline proceeding. In connection with that matter, respondent stipulated that between April 1998 and January 2000, he deposited and maintained in his client trust account funds which belonged to him and to businesses that he owned in whole or in part. Respondent stipulated that this conduct constituted commingling of client funds with his own, in willful violation of Rule 4-100(A) of the California Rules of Professional Conduct. Respondent further | ¡.stipulated that on six occasions between August 12, 1998 and November 17, 1999, he issued checks drawn on his trust account when he knew or should have known “there were insufficient funds in his trust account upon which the check could be honored.” These checks totaled $102,711.81; however, respondent made good on all the NSF checks, and no clients or business associates suffered any monetary losses as a result of respondent’s conduct. Respondent stipulated that by issuing the NSF cheeks, he committed an act or acts involving moral turpitude, dishonesty, or corruption, in willful violation of section 6106 of the California Business and Professions Code.

In mitigation, the parties agreed that respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary investigation and proceedings. The parties agreed that no aggravating factors are involved. Under the circumstances, the parties agreed that a fully deferred six-month suspension, subject to a two-year period of probation with conditions, is appropriate and adequately protects the public.

By order dated July 12, 2000, the Hearing Department of the State Bar Court approved the stipulated facts and disposition. On July 20, 2000, the order was modified, sua sponte, to require respondent to provide proof of passage of the Multistate Professional Responsibility Examination (“MPRE”) to the Probation Unit of the Office of the Chief Trial Counsel within one year.

By judgment filed on October 30, 2000, the Supreme Court of California suspended respondent from the practice of law for six months. The execution of the suspension was stayed and respondent was placed on probation for two years, subject to the conditions of probation recommended by the Hearing Department of the State REar Court in its Order Approving Stipulation executed on July 12, 2000, as modified by its order filed July 20, 2000. The court further ordered respondent to take and pass the MPRE -within one year, and awarded costs to the State Bar. In re John Sellmann Hilbert on Discipline, No. S090916 on the docket of the Supreme Court of California.

By order of this court dated February 18, 2003, respondent was given thirty days pursuant to Supreme Court Rule XIX, § 21(D) to show why the imposition of discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The imposition of reciprocal discipline against respondent based upon the California judgment is clearly appropriate under the facts of this case. Respondent has failed to file any pleadings in this court demonstrating that the imposition of identical discipline in Louisiana would be unwarranted, and there is no suggestion of such upon |4the face of the record before us. Moreover, there is little doubt that respondent’s conduct would warrant discipline in Louisiana, given that it involves commingling of client funds and writing NSF checks on his trust account.

Accordingly, we will impose reciprocal discipline pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that John Sellmann Hilbert, Louisiana Bar Roll number 16972, be suspended from the practice of law in Louisiana for six months. It is further ordered that this suspension shall be fully deferred, and respondent shall be placed on probation for two years, subject to the conditions set forth by the Supreme Court of California in its order imposing discipline in In re John Sellmann Hilbert on Discipline, No. S090916 on the docket of the Supreme Court of California.

      . Supreme Court Rule XIX, § 21(A) provides:
      Upon being disciplined by another slate disciplinary agency, a lawyer admitted to practice in Louisiana shall promptly inform disciplinary counsel of the discipline. Upon notification from any source that a lawyer within the jurisdiction of the agency has been disciplined in another jurisdiction, disciplinary counsel shall obtain a certified copy of the disciplinary order and file it with the board and with the court.

      . The record reflects that the businesses were separate from respondent’s law practice and included Harbert Entertainment Group, LLC (which operated a nightclub), and Heritage Research Group and International Asset Researchers (two genealogical research firms).

      . The substantive conditions of probation include a requirement that respondent attend the State Bar Ethics School and the State Bar Client Trust Accounting School, and take and pass the examination given at the end of the sessions.

      . Supreme Court Rule XIX, § 21(D) provides:
      Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
      (1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
      (2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
      (3) The imposition of the same discipline by the court would result in grave injustice; or
      (4) The misconduct established warrants substantially different discipline in this state.
      If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.


author: I,PER CURIAM.

text:
    In re Michael F. MELTON.
    No. 2003-B-0516.
    Supreme Court of Louisiana.
    May 30, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

I,PER CURIAM.

This disciplinary matter arises from three sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael F. Melton, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Three sets of formal charges were filed against respondent by the ODC. The first, bearing the disciplinary board’s docket number 99-DB-057, was filed on June 18, 1999 and encompasses three counts of misconduct involving six clients. The second and third sets of formal charges, 00-DB-096 and 01-DB-020, were filed on August 9, 2000 and February 9, 2001, respectively, and each encompasses one count of misconduct. The three sets of formal charges were consolidated by order of the hearing committee chairman on April 2, 2001.

99-DB-057

Count I — The Turner Matter

In 1998, Tracye Turner paid respondent $10,000 to defend a first-degree murder charge pending against her husband, Isaac Turner, in Jefferson Parish. Respondent failed to appear in court for several hearings, and he failed to appear at trial. After it became clear that respondent misrepresented to the court the reasons for his failures |2to appear, the trial judge appointed counsel from the Indigent Defender Board to represent Mr. Turner and found respondent guilty of direct contempt. Respondent was sentenced to serve ten hours in the Jefferson Parish Correctional Center, ordered to perform fourteen hours of community service work, and fined $100.

In March 1999, Mrs. Turner filed a complaint against respondent with the ODC. During a sworn statement given on April 22, 1999, respondent agreed to provide certain documentation in connection with the matter; however, he has failed to do so.

Count II — The Stewart Matter

In August 1997, Jeannette Stewart paid respondent $5,000 to handle an appeal in a criminal case in which respondent had represented the defendant, Anthony Stewart, at trial. Respondent failed to communicate with his client or Ms. Stewart for several months, despite their attempts to reach him by telephone and in person. Although respondent filed assignments of error in the court of appeal, the appellate brief was ultimately filed by the Louisiana Appellate Project at no charge to the defendant. When Ms. Stewart was finally able to reach respondent in March 1998, she asked him to return the fee she had paid. Respondent refused, stating that he had prepared the rough draft of the appeal (consisting of four pages) and was waiting for the briefing deadlines to be set. Respondent informed complainant that he could only be fired for “just cause,” and that someone other than himself doing the work at no charge was not “just cause.” Respondent never filed a brief in the matter and he faded to account for or refund the unearned portion of the fee Ms. Stewart paid.

In May 1998, Ms. Stewart filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

| a,Count III — The Hebert, et al. Matter

Alex Hebert, Jr., Irell Warren, Sr., Lionel Johnson, Sr., and Lionel Johnson paid respondent $250 each to appeal the outcome of a union hearing and to appear on their behalf at the hearing on the appeal. Respondent signed the appeal, which was untimely filed, and he failed to appear at the hearing. Respondent later admitted that he had simply signed the appeal and had no knowledge of when it was actually filed, because the appeal had been prepared and filed by Endesha Jua-kali, a suspended attorney. Respondent further admitted that he was acting as a “conduit” so that the four clients could have Mr. Juakali as their lawyer. Respondent agreed to share half the $1,000 attorney’s fee with Mr. Juakali, and refused to refund any fees to the clients.

In December 1997, Messrs. Hebert, Warren, Johnson, Sr., and Johnson filed complaints against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaints.

The ODC alleges that respondent’s conduct in the Turner, Stewart, and Hebert, et al. matters violates 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), 1.5(f)(6) (failure to refund an unearned fee), 3.2 (failure to expedite litigation consistent with the interests of the client), 3.3(a)(1) (making a false statement of material fact or law to a tribunal), 5.4(a) (sharing legal fees with a non-lawyer), 5.5(b) (assisting a non-lawyer in the unauthorized practice of law), 8.1(e) (failure to cooperate with the ODC in its investigation), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of __yustice). Respondent answered the formal charges and denied any intentional misconduct.

00-DB-096

The White Matter

In August 1998, the family of Monte White paid respondent $7,500 to handle an appeal in a criminal case involving Mr. White. Respondent filed an appeal and an October 5,1998 return date was set for the record. Respondent claims that he requested the transcripts of Mr. White’s trial and sentencing from the court reporter in Division “H” of the Orleans Parish Criminal District Court in August 1998.

On February 26, 1999, the Fourth Circuit Court of Appeal ordered the Division “H” court reporter, Lorie Barnewold, to prepare and file the transcripts within twenty days. A second such order was issued on May 10, 1999. On June 28,1999, Ms. Barnewold informed the court of appeal that she had left several messages for respondent that he would have to pay an up-front deposit before she would begin the transcription process; however, she had not received a response from respondent. On August 11, 1999, the court of appeal ordered respondent to pay the costs to the court reporter within fifteen days. A second such order was issued on September 20, 1999. Respondent then filed a motion for extension of time, indicating that he had been unable to locate the court reporter; however, the order was not signed by the court of appeal.

On January 3, 2000, the court of appeal ordered the trial judge to take action to have the transcript prepared. On April 6, 2000, the trial judge was ordered to determine whether new appeal counsel should be appointed. Following a hearing on May 19, 2000, the trial court appointed new counsel to represent Mr. White.

|BIn October 1999, Mr. White’s mother, Carolyn White, filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleges that respondent’s conduct violates the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.3, 1.4 (failure to communicate with a client), 1.5 (failure to account for and refund an unearned fee), 3.2, 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(g) (failure to cooperate with the ODC in its investigation). The ODC further alleged that respondent failed to respond to a lawful demand for information from a disciplinary authority, in violation of Supreme Court Rule XIX, § 9(c). Respondent answered the formal charges and admitted he was retained to handle Mr. White’s appeal; however, he denied he had intentionally violated the Rules of Professional Conduct.

01-DB-020

The Unauthorized Practice of Law Matter

On August 1, 1999, respondent was certified ineligible to practice law in Louisiana for failing to comply with the mandatory continuing legal education requirement. Between September 3, 1999 and October 30, 2000, respondent was ineligible to practice for failing to pay his bar dues and the disciplinary assessment. Nevertheless, on two occasions in 2000, respondent appeared in open court as counsel for the defendant in the matter entitled State of Louisiana v. Edward Gilmore, number 412,142 on the docket of the Orleans Parish Criminal District Court. Respondent also failed to cooperate in the ODC’s investigation of the complaint filed in connection with this matter.

[ fiThe ODC alleges that respondent’s conduct violates the following provisions of the Louisiana Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized practice of law) and 8.4(g). Respondent answered the formal charges and admitted that he appeared in court in the Gilmore matter on May 18, 2000; however, he asserted “it was his intent to appear only as a friend of defendant and not as his attorney.”

DISCIPLINARY PROCEEDINGS

This matter was initially set for a formal hearing on the merits on September 17, 2001. Respondent attended the hearing unrepresented by counsel and requested a continuance. The committee agreed to the request and continued the hearing until December 10, 2001, with the understanding that respondent was to be prepared at that time to present all his witnesses and evidence regarding the formal charges.

On December 10, 2001, respondent again appeared without benefit of counsel, but he stated that he and Deputy Disciplinary Counsel Julie White had entered into a joint stipulation of facts relating to each of the three sets of formal charges. In the joint stipulation, the parties agreed that if there had been a full hearing on the merits of the formal charges, “the following facts would have been proven by clear and convincing evidence”:

1. Information was received by the Office of the Disciplinary Counsel on March 25, 1999, in investigative matter 0009153, alleging that respondent was paid [7$10,000 by Tra-cye Turner on August 20, 1998, to represent defendant, Isaac Turner, with respect to criminal charges of first degree murder. Respondent failed to show up in court for several hearings, as well as for the trial set for May 17,1999, and re-set for May 19, 1999. The court finally appointed counsel from the Indigent Defender Board to represent the client after it became clear that respondent misrepresented to the court the reasons for his failures to appear. Although respondent ultimately represented defendant, Isaac Turner, at trial, the court found respondent guilty of direct contempt. Respondent was sentenced to 10 hours in the Jefferson Parish Correctional Center. In addition, he was ordered to serve 14 hours of community service and pay a $100 fíne.
2. Michael F. Melton’s conduct in this matter involves dishonesty, fraud, deceit, and misrepresentation; lack of diligence; engaging in conduct prejudicial to the administration of justice; lack of candor toward the tribunal; and failure to expedite litigation.
3. Michael F. Melton’s conduct in this matter'violated Rules 1.3, 3.3(a)(1), 3.2, 8.4(c), and 8.4(d) of the Rules of Professional Conduct.
4. Information was received by the Office of the Disciplinary Counsel on May 26, 1998, in investigative matter 0007782, alleging that respondent was paid $5,000 on August 20, 1997, to handle an appeal in a criminal case in which respondent had represented the defendant, Anthony Stewart, at trial. Although respondent filed assignments of error, the notice of appeal reflected the Louisiana Appellate Project as counsel for appellant. The appellate brief was ultimately filed by the Louisiana Appellate Project at no charge to the defendant. The defendant’s mother, Jeanette Stewart, inquired of respondent if she could get her money back and respondent replied in the negative, stating that he had prepared a rough draft of the appeal (consisting of four pages) and was waiting for the briefing deadlines to be set. Respondent never filed a brief and failed to complete the work. After well over a year, respondent has failed to account for or refund any of the fee paid.
5. Michael F. Melton’s conduct in this matter involves failure to account for and refund an unearned fee, and lack of diligence.
6. Michael F. Melton’s conduct in this matter violated Rules 1.3 and 1.5(f)(6) of the Rules of Professional Conduct.
7. Information was received by the Office of the Disciplinary Counsel on December 9, 1997, in investigative matters 0006878, 0006879, 0006880, and 0006882, alleging that respondent was paid $1,000 to appeal the outcome of a union hearing for four clients, Alex Hebert, Irell Warren, Lionel Johnson, Sr. and Lionel Johnson, and to appear at the hearing on the clients’ behalf. Respondent signed the appeal, which was clearly not filed timely, and failed to appear at the hearing on the appeal. Respondent admitted that he signed off on the appeal documents, which were prepared and filed by Endesha [sJuakali (an attorney suspended from the practice of law) and that he had no knowledge of when the appeal was filed. Respondent admitted that he was acting as a “conduit” so that the clients could have the lawyer they wanted, Endesha Juakali, a suspended attorney. Respondent has refused to refund any fees to the clients.
8. Michael F. Melton’s misconduct in these matters involves failure to account for and refund an unearned fee; lack of diligence; and neglect of legal matters.
9. Michael F. Melton’s conduct in these matters violated Rules 1.3 and 1.5(f)(6) of the Rules of Professional Conduct.
10. Carolyn White and her son, Gregory and/or Michael White, paid respondent $7,500 in August 1998 to handle the criminal appeal for Monte White, her son, who was convicted in June of 1998 and was sentenced to life imprisonment. Respondent filed an appeal and was waiting for the transcript of the trial in order to prepare the brief. No briefing dates were set by the Fourth Circuit Court of Appeal or the dates were continued at respondent’s request because of the delay in obtaining the transcript. Respondent claims that he signed a slip at the trial court “section H” requesting that the transcript be prepared in August 1998. The court reporter for Section “H” at Orleans Criminal District Court was Ms. Lorie Barnewold. The evidence indicated that Ms. Barne-wold was the court reporter through June 1999. She indicates that she left several messages for respondent that he would have to pay an up front deposit before she would begin the transcription process. She never received a response. Respondent states that he could not locate Ms. Barnewold to determine the amount owed and that he was never told he would have to pay any deposit up front. However, respondent could not produce any evidence of steps taken on his client’s behalf to obtain the transcript and pay for same. Over one year after respondent’s client was sentenced, the Fourth Circuit Court of Appeal ordered respondent to pay the costs to the reporter within fifteen (15) days. Respondent was again ordered to pay costs on September 20, 1999. Respondent filed a Motion for Extension of Time at the Fourth Circuit indicating that he had been unable to locate the court reporter. The order was not signed. By January 3, 2000, the Fourth Circuit ordered the District Court Judge to take action to have the transcript prepared and to determine appeal counsel. The hearing was held in Criminal Court on May 19, 2000, wherein respondent’s client was appointed new counsel. The Office of Disciplinary Counsel sent a copy of the complaint requiring respondent to respond within fifteen (15) days of November 1, 1999. Respondent failed to respond. Respondent appeared at the Office of Disciplinary Counsel on January 5, 2000, in response to a subpoena to give his sworn testimony. The Office of Disciplinary Counsel sent respondent a certified letter on April 26, 2000, requiring a further response within fifteen (15) days of May 10, 2000. Respondent failed and refused to respond to same.
11. Respondent’s conduct in this matter represents lack of diligence, in violation of Rule 1.3; lack of communication, in violation of Rule 1.4; failure to account for and refund an unearned fee, in violation of Rule 1.5; failure to expedite litigation, in violation of Rule 3.2; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c); failure to cooperate with the Office of Disciplinary Counsel, in violation of Rule 8.4(g) of the Rules of Professional Conduct and Louisiana Supreme Court Rule XIX, Section 9(c), | gfailure to respond to a lawful demand for information from a disciplinary authority.
12. The Office of Disciplinary Counsel received information on May 19, 2000 that respondent appeared as counsel representing a criminal defendant in Orleans Parish Criminal Court on March 30, 2000 and May 18, 2000 in the case of the State of Louisiana vs. Edward Gilmore, Docket No.: 412,142-Section “M5”. Respondent was ineligible to practice law [on those dates]. The information was forwarded by the Office of Disciplinary Counsel via certified mail to respondent on June 26, 2000, requiring respondent to provide a written response to same within fifteen (15) days of receipt of the letter. The return receipt card indicated the date of delivery as of June 27, 2000. Respondent failed, refused and neglected to reply until November 20, 2000, at which time respondent asserted he appeared in court as defendant’s “friend,” not as defendant’s attorney. The documents of the court, however, reflect that respondent in fact appeared as defendant’s attorney. Respondent’s conduct in this matter involves engaging in the unauthorized practice of law, in violation of Rule 5.5(a), and failure to cooperate with the Office of Disciplinary Counsel, in violation of Rule 8.4(g) of the Rules of Professional Conduct.

In addition to the joint stipulation of facts, the committee also received into evidence nearly forty exhibits offered by the ODC in support of the formal charges, and heard testimony from Tracye Turner, Jeanette Stewart, Alex Hebert, Jr., and Michael White, each of whom generally testified to the facts as they were set forth in the joint stipulation.

At the conclusion of the hearing, respondent requested that the record be held open to receive additional mitigating evidence and for the filing of a post-hearing memorandum. The hearing committee chairman granted this request; however, respondent filed nothing for the committee’s consideration.

Hearing Committee Recommendation

|inIn its May 20, 2002 report, the hearing committee found that the allegations of the formal charges were, in effect, deemed admitted and proven by clear and convincing evidence pursuant to the joint stipulation of facts. The committee found the ODC’s witnesses to be “truthful and sincere in their rendition of the facts,” and noted they generally testified as per the stipulation. On the other hand, the committee felt respondent’s testimony concerning the stipulated facts was “convoluted, unconvincing, and lacked any detail or conciseness which would convince the hearing committee that the stipulation was in any way incorrect. In fact, [respondent’s] explanation only further convinced the hearing committee that [respondent] was indeed committing the various violations outlined in the stipulation itself.”

Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction for respondent’s misconduct is a suspension. In aggravation, the committee recognized respondent’s multiple offenses, pattern of misconduct, and substantial experience in the practice of law (admitted 1986). However, in mitigation, the committee found that respondent demonstrated remorse and “indicated that he wants to make restitution to most of these clients.”

Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for two years, with one year deferred, followed by a one-year period of supervised probation. The committee further recommended that as a condition of reinstatement, respondent be ordered to refund all unearned fees to his clients in the amounts set forth in the joint stipulation of facts.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

| nDisciplinary Board Recommendation

After reviewing this matter, the disciplinary board found that the hearing committee’s factual findings are generally supported by the record. The board further found that the joint stipulation of facts, along with the evidence adduced at the hearing, support the determination that respondent violated the following Rules of Professional Conduct: in 99-DB-057, respondent violated Rules 1.3, 1.5(f)(6), 3.2, 3.3(a)(1), 8.1(c), 8.4(b), 8.4(c), and 8.4(d); in 00-DB-096, respondent violated Rules 1.3, 1.4, 1.5, 3.2, 8.4(c), and 8.4(g), as well as Supreme Court Rule XIX, § 9(c); and in 01-DB-020, respondent violated Rules 5.5(a) and 8.4(g). However, after a de novo review of the record, the board concluded that respondent’s conduct in the Hebert, et al. matter did not constitute sharing legal fees with a non-lawyer or assisting a non-lawyer in the unauthorized practice of law. First, the board noted Mr. Hebert’s acknowledgment that respondent, not Mr. Juakali, had the professional responsibility for the representation of the four union workers. Furthermore, respondent testified that he supervised Mr. Juakali’s work, which was in the nature of the services provided by a paralegal. Finally, the board concluded that although a 50/50 split of the $1,000 attorney’s fee with Mr. Juakali “may be questionable, there is nothing in the record to indicate that the $500.00 Respondent paid to Mr. Juakali was anything other than payment for paralegal services rendered by Mr. Juakali.” Based on this reasoning, the board determined that respondent did not violate Rules 5.4(a) and 5.5(b) of the Louisiana Rules of Professional Conduct.

haThe board found respondent knowingly violated duties owed to his clients, the legal system, and the profession. Respondent’s clients were harmed by his knowing neglect of their legal matters and failure to promptly refund any unearned portion of the legal fees he received. Mr. White was further harmed by respondent’s failure to reasonably communicate with his client. Respondent’s misconduct jeopardized his clients’ legal matters and delayed resolution of their cases, and his failure to refund any unearned portion of the legal fees paid by his clients potentially deprived them of funds they were rightfully owed. The legal system has been harmed by respondent’s failure to appear in court as required and by his failure to expedite his clients’ legal matters. Respondent’s misconduct unduly burdened and delayed the legal system. Finally, the legal profession has been harmed by respondent’s failure to cooperate in the disciplinary investigation of the complaints filed against him.

The board concurred in the aggravating factors cited by the committee, and recognized the mitigating factor of remorse is present.

In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board concluded the sanction proposed by the committee is too lenient. Accordingly, the board recommended that respondent be suspended from the practice of law for three years and ordered to make restitution to his clients. 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.

| igNeither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1816 (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.

We agree that the factual findings of the hearing committee are well supported by the evidence. We also agree that these factual findings support the disciplinary board’s conclusion that respondent has violated the Louisiana Rules of Professional Conduct.

Having found professional violations, we now turn to a determination of the appropriate sanction for this misconduct. In determining an appropriate 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).

luAs the board properly recognized, each of respondent’s multiple instances of serious misconduct, standing alone, justifies a lengthy suspension. In light of the aggravating factors present in this case, we see no justification for imposing a suspension of less than three years. Accordingly, we will accept the disciplinary board’s recommendation and suspend respondent from the practice of law for three years. We will further order respondent to make full restitution to his clients.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Michael F. Melton, Louisiana Bar Roll number 17323, be suspended from the practice of law in Louisiana for a period of three years. It is further ordered that respondent make full restitution to his clients of any unearned legal fees. 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.

      . Notwithstanding the appointment of the 1DB, respondent did, in fact, represent Mr. Turner when the case was re-set for trial.

      . In response to questions from the hearing committee chairman, respondent agreed these stipulations constituted his agreement with the ODC. However, during the course of the hearing, respondent advised the committee that he had not read the joint stipulation of facts prior to signing it. The committee chairman recessed the hearing briefly to allow respondent the opportunity to do so. Following the recess, respondent stated it was his intention “to accept the stipulation as long as I can give my side of the story, make my statement in terms of where [the stipulation is] inaccurate or what's not being said.” The committee then allowed respondent to testify at length concerning the stipulated facts, and in this testimony, respondent essentially repudiated the stipulation. However, both the hearing committee and the disciplinary board ultimately concluded that the joint stipulation is substantially an accurate rendition of facts clearly and convincingly established by the ODC.

      . The ODC had actually subpoenaed some 13 witnesses to testify in person before the committee. However, after respondent agreed to enter into the joint stipulation of facts, the committee members, respondent, and Deputy Disciplinary Counsel Ms. White determined that one witness from each "complainant group" would be called to testify and that the remaining witnesses would be dismissed. Both parties were given the opportunity to question the complainants who testified.

      . At the time of the Hebert, et al. representation, no restriction prevented a suspended lawyer from working as a paralegal in a law firm or for another attorney. However, effective July 1, 2002, we amended Rule 5.5 of the Louisiana Rules of Professional Conduct to provide that a lawyer may not “employ, contract with as a consultant, engage as an independent contractor, or otherwise join in any other capacity, in connection with the practice of law, any person the attorney knows or reasonably should know is a suspended attorney, during the period of suspension, unless first preceded by the submission of a fully executed employment registration statement to the Office of Disciplinary Counsel, ...”

      . The board considered three separate lines of jurisprudence: first, cases involving neglect of legal matters, failing to communicate with clients, failing to account for or refund unearned fees, and failing to cooperate with the ODC; second, cases involving the practice of law by attorneys who were ineligible to do so; and third, cases involving attorneys found to be in contempt for violating orders of a court. The board concluded that each of respondent's multiple instances of serious misconduct, standing alone, justifies a lengthy suspension.


text:
    STATE of Louisiana v. Corey MILLER.
    No. 2003-KK-0796.
    Supreme Court of Louisiana.
    June 4, 2003.
   JjPER CURIAM.

Writ granted in part, otherwise denied.

In this matter, the State claims that ordering it to provide the defendant with names and addresses of potential witnesses will put the witnesses at risk of retaliation. On the other hand, the defendant contends he is being denied the right to meaningful discovery under the due process clause. Both the State and the defense have recognized the difficult balance that must be struck.

Notably, defense counsel demonstrated a willingness to abide by a district court order partially limiting the State’s disclosure of the ordered information, stating:

Any safeguards that are needed, if there’s a concern about some type of intimidation, the defense will gladly work with you. We just simply need this information. We could sign affidavits that we won t disclose this to anyone else, but we need this to properly prepare this for trial and not delay things. [9/20/02 Tr. at 4 (App. No. 02-KK-2727 ex. 2 at 4) ]

| {¡Further, defense counsel offered not to share the witnesses names or addresses even with his client. Id. at 11. In the district court, the State neither commented on the alleged potential threat to witness safety, nor its position regarding the defendant’s proposal. Id. The State concedes that the disclosure is necessary, the only issue is the timing of the disclosure.

This is a matter of first impression in this court. This is a matter which requires a delicate balancing of the rights of the defendant to full and complete disclosure of exculpatory materials against the societal interest in protecting innocent witnesses who voluntarily come forward to testify. Often it is only through witnesses who are voluntarily willing to come forward that the truth can be determined at trial. There is a tremendous societal interest in protecting citizens from danger and the fear of retaliation for doing that which any good citizen should do.

Because of the significance of this issue and because both the State and defense have recognized the delicate balance which must be struck, it is appropriate that this matter be remanded to the trial court for an evidentiary hearing. In striking the balance between the defendant’s right to disclosure of Brady/Giglio matters and the societal concern for the safety of witnesses, the court should consider all relevant factors. (For a nonexclusive listing of some such relevant factors which can provide guidance, see La.C.Cr.P. art. 334.)

Additional consideration should be given to any evidence which establishes the defendant attempted to threaten any witnesses, the seriousness of any such threat, and the defendant’s ability to carry out such a threat. The court should take into account what information has been requested by the defendant, how that information will be used by the defendant, and whether a delayed disclosure of 13Brady material will be timely for its effective use at trial. See e.g., United States v. Higgs, 713 F.2d 39, 44 (3rd Cir.1983).

We remand the case to the district court with instructions to afford both sides the opportunity to present evidence regarding the safety of potential witnesses, and to determine the method by which the State will comply with the court of appeal’s discovery order. This determination shall take into account both the safety of the potential witnesses and this court’s rule that “the late disclosure as well as the nondisclosure of exculpatory evidence can so prejudice a defendant that he is deprived of his constitutional right to a fair trial.” State v. Williams, 448 So.2d 659, 665 (La.1984). (See Higgs, 713 F.2d at 44, “No denial of due process occurs if Brady material is disclosed ... in time for its effective use at trial.”) In all other respects, the application is denied.

CALOGERO, C.J., recused.