author: | t TRAYLOR, Justice. L CALOGERO, Chief Justice | KIMBALL, Justice, | ¶ JOHNSON, Justice, hWEIMER, J.,

text:
    Dianne TURNER, as Natural Tutrix of the Minor Child Cietra Jenal Stroughter (Onterio McWright) v. Thomas R. BUSBY and Zurich American Insurance Company.
    No. 2003-C-3444.
    Supreme Court of Louisiana.
    Sept. 9, 2004.
    Rehearing Denied Oct. 29, 2004.

      Bobby Ray Manning, for applicant.
    Samuel Henry Thomas, James Edward Paxton, Tallulah, for respondent.
   | t TRAYLOR, Justice.

We granted this writ application to determine whether Onterio McWright, the plaintiff, is a child of the decedent for the purposes of a wrongful death and survival action where McWright has no biological connection to the decedent, but decedent executed a formal acknowledgment of paternity. For the following reasons, we affirm the court of appeal and find that McWright is not a child who may recover damages under a wrongful death and survival claim.

FACTS AND PROCEDURAL HISTORY

On November 11, 1999, Andrew Stroughter (“Stroughter”) was killed in a collision with a tractor trailer driven by Thomas Busby (“Busby”). Following the accident, multiple parties filed suit against Busby and his insurance carrier, Zurich American Insurance Company (“Zurich”) for the wrongful death of Stroughter. The plaintiffs in this action include Alversia Stroughter, Stroughter’s ex-wife; Onterio McWright, his formally acknowledged son; LeShun Singleton, his daughter; and Dianne | ¿Turner, Stroughter’s girlfriend, as natural tutrix for their minor child, Cietra Jenal Stroughter. This appeal focuses specifically on McWright’s claims.

McWright was born to Gladysteen Harris (“Harris”) on June 8, 1970. Harris and Stroughter were never married. However, in child support proceedings on March 3,1982, Stroughter signed a notarized stipulation that was made an order of the court under La.Rev.Stat. 14:75.2 wherein he agreed to pay child support. Stroughter subsequently stipulated that he was McWright’s “lawful parent” in an order and judgment fixing child support entered in the Superior Court of the State of Washington, King County, on May 6, 1983, where he was cast in judgment for back child support. The March 1982 stipulation was amended on May 4, 1984, and Stroughter again signed another notarized stipulation and judgment admitting that he was MeWright’s father and agreed to pay child support.

After this wrongful death and survival action ensued, the defendants filed an Exception of No Right of Action arguing that McWright was neither legitimate at birth, nor subsequently legitimized by Stroughter; therefore, McWright is not within the class of persons who may assert a wrongful death and survival action under La. Code Civ. Proc. arts. 2315.1 and 2315.2. In addition, the defendants submitted and were granted |3a motion to have a DNA test performed on McWright to determine if Stroughter was in fact his father. The Court of Appeal, Second Circuit, denied writs on the showing made. McWright then submitted to the DNA testing which revealed a 0% probability that McWright was Stroughter’s son. Thereafter, the trial court granted the defendant’s Exception of No Right of Action, and McWright was dismissed from the lawsuit with prejudice.

On appeal, McWright asserted that, as a matter of law, the 1982, 1983, and 1984 final judgments fixing child support settled the issue of paternity. Consequently, any attack on the validity of the assertions in those judgments should have been made within one year of the discovery of the alleged defect or nullity under La.Code of Civ. Proc. art.2004. As a result, McWright argued that the defendants are preempted by operation of law from collaterally attacking that judgment in this wrongful death action. McWright also asserted that the defendants lack standing to attack the formal acknowledgments executed pursuant to the 1982 and 1984 criminal stipulations. On rehearing, the Court of Appeal, Second Circuit, affirmed, finding that the defendants had standing to contest the validity of the formal acknowledgments and that McWright could not recover wrongful death and survival damages because he is not Stroughter’s child.

|40n the application of McWright, we granted certiorari to review the correctness of the lower courts’ judgments granting the peremptory exception of no right of action. Turner v. Busby, 03-3444 (La.3/19/04), 869 So.2d 834.

DISCUSSION

The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. La.Code Civ. Proc. art. 927; Reese v. State, Dept. of Public Safety & Corrections, et al, 03-1615 (La.2/20/04), 866 So.2d 244, 247. In examining an exception of no right of action, a court should focus on whether the particular plaintiff has a right to bring the suit, but assume that the petition states a valid cause of action for some person. Id. The exception of no right of action questions whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

To recover under a claim for wrongful death and survival, a plaintiff must fall within the class of persons designated as a beneficiary as prescribed by La. Civ.Code arts. 2315.1 and 2315.2. The primary category under both wrongful death and survival actions includes “children” of the decedent. Reese, 866 So.2d at 247.

McWright argues that a judgment of paternity existed between himself and Stroughter based on the 1982, 1983, and 1984 final judgments fixing child support. He asserts that the defendants cannot collaterally attack this final judgments twenty years later in this proceeding because they have not challenged the acknowledgment within |fithe one-year peremptive period provided in La.Code Civ. Proc. art.2004. We disagree, and find that Article 2004 is inapplicable to the instant case.

La.Code Civ. Proc. art.2004 provides for a one-year peremptive period for the annulment of a civil judgment obtained by fraud or ill practices. By contrast, La. Rev.Stat. 14:75.2, located in Title 14 which deals exclusively with criminal law, is criminal in nature. State v. Broussard, 490 So.2d 273 (La.1986). Moreover, the jurisprudence has held that a proceeding for criminal neglect of family must be converted into a paternity proceeding in order to establish a civil judgment of paternity. State v. Foss, 449 So.2d 159, 161 (La.App. 4 Cir.1984). The stipulation and the judgment are separate. State v. Braxton, 238 La. 13, 113 So.2d 292, 294 (1959). Thus, the jurisprudence and the subject matter of the statute establish that these judgments are criminal in nature, and do not constitute a civil paternity judgment.

Based on the jurisprudence and the subject matter of La.Rev.Stat. 14:72.5, this case clearly involves a stipulation made pursuant to a criminal statute. By its very nature, the prescriptive periods set forth in the Louisiana Code of Civil Procedure are inapplicable to the annulment of a stipulation made pursuant to a criminal statute. For these reasons, we find that La.Code Civ. Proc. art.2004 is inapplicable to the instant case.

Having established that the prescriptive periods set out in the Louisiana Code of Civil Procedure are inapplicable to a criminal judgment, we must next determine whether | fithese judgments constitute final judgments as to these parties pursuant to other law. La.Rev.Stat. 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on an appeal or other direct review, to the following extent:
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

This statute adopts the principle of issue preclusion, which is designed to promote judicial economy by preventing relitigation of the same issue between the same parties. La.Rev.Stat. 13:4231, Comment (B).

In the instant case, the defendants were not parties to the criminal child support proceeding, nor did the defendants have an opportunity to intervene in such an action at the time it arose. The defendants’ interest in the plaintiffs claim arose when McWright filed suit for wrongful death and survival damages based on his claim that he is Stroughter’s illegitimate child and named the defendants as parties therein. Therefore, the stipulation of paternity in the 1982, 1983, and 1984 judgments could not have conclusive effect between McWright and these particular defendants because the same parties are not attempting to relitigate the paternity issue.

McWright next argues that the defendants do not have standing to contest the formal acknowledgment executed by Stroughter pursuant to the child support proceedings. We disagree and find that the defendants have standing to contest McWright’s claims as an illegitimate child pursuant to La. Civ.Code art. 207.

La. Civ.Code art. 207 states, “Every claim, set up by illegitimate children, may be contested by those who have any interest therein.” In Succession of Robinson, 94 2229 (La.5/22/95), 654 So.2d 682, 685, this court clearly and unequivocally held that the right to challenge an acknowledgment is granted by La. Civ.Code art. 207. In Robinson, Hardie Robinson, Jr. formally acknowledged three children born to his wife during her previous marriage in a 1971 will executed before a notary public and two witnesses. In 1988, Robinson executed a new will without mention of his wife’s daughters. After Robinson died in 1992, the acknowledged women intervened in the succession seeking to be recognized by the court as Robinson’s children and thus be allowed to participate in the succession. When the administrator and forced heir, Melvin Robinson, subsequently sought DNA testing, the women claimed that the formal acknowledgment could not be attacked. This court found that Melvin Robinson, had standing under Article 207 to contest the formal acknowledgment and the women’s claims to participate as forced heirs in the succession due to his own interest as administrator of the succession and as a forced heir.

Defendants herein also have an interest in contesting McWright’s claim that he is entitled to recover under the wrongful death and survival actions as a child of the decedent. Here, McWright has filed a wrongful death and survival action alleging that he falls within the primary class of beneficiaries who may recover damages. The defendant insurance company and Busby, as potentially liable parties named in this lawsuit, have an interest in this suit based on McWright’s claim that he is Stroughter’s illegitimate child and thus falls within the primary class of beneficiaries who may recover under a wrongful death and survival action.

As the defendants argue, our holding is supported by jurisprudence which establishes the necessity of a biological connection between a child and the tort victim in wrongful death and survival actions. This court in Warren v. Richard, 296 So.2d 813, 817 (La.1974), determined that the critical requirement for classification of ajjperson as a child in a wrongful death and survival action is the biological relationship between the tort victim and the child. In Warren, Iris Blackburns, the legitimate child of Albert Gray, alleged that she was entitled to wrongful death and survival damages for the death of her biological father, David Lee Blackburns. This court reversed the trial court and denied the defendants’ exception of no right of action, reasoning that to find a child had no right to recover for her biological father’s wrongful death because the law presumed her to be the legitimate child of another man would run counter to the Equal Protection Clause of the United States Constitution. As the Warren court stated, “it is the biological relationship and dependency which is determinative of the child’s rights in these cases, and not the classification into which the child is placed by the statutory law of the State.” Id. Thus, it is imperative that we uphold the critical requirement that the tort victim and the child have a biological relationship.

McWright also attempts to construe the lower courts holdings as contrary to public policy because it “bastardizes” children. However, to contest a claim under Article 207, the child making the claim must be illegitimate. Children may either be legitimate, illegitimate, or .legitimated. La. Civ. Code. arts. 178 and 181. La. Civ.Code art. 207, located in Chapter 3, Section 2, entitled “Of the Acknowledgment of Illegitimate Children,” provides in pertinent part for the formal acknowledgment of illegitimate children:

A. The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child.

Although Article 203 may serve as proof of paternity, it does not legitimate the child. Davenport v. Davenport, 116 La. 1009, 41 So. 240, 240-241 (1906). By contrast, a parent 18wishing to legitimize a child may do so by notarial act provided that the parent makes a declaration of his intent to legitimate the child. See, La. Civ.Code art. 200.

The record reveals that the 1982 and 1984 criminal stipulations conform with the requirement that a parent must execute a formal acknowledgment before a notary and two witnesses; but does not reveal an intent to legitimize McWright by notarial act. The 1982 and 1984 criminal stipulations executed in Madison Parish, Louisiana, contained identical language which reveals an absence of intent to legitimize McWright:

I agree to pay to the Department of Health and Human Resources the amount of ... for the support of the child born to me and Gladysteen Harris named herein as follows: Onterio J. McWright ...

Moreover, the 1983 judgment executed in King County, Washington stated that “[Stroughter] is the lawful parent of On-terio J. McWright ...” Although all three stipulations were executed before a notary and two witnesses, Stroughter did not declare his intention to make McWright his legitimate child. Without this declaration, the execution of the criminal stipulation did not legitimize McWright. Because McWright was not a legitimate child at the time this wrongful death and survival action commenced, but rather a formally acknowledged illegitimate child under Article 203, his claim as an illegitimate child may be subject to scrutiny provided the defendants have proved all other requirements of Article 207. Accordingly, we affirm the court of appeal and find that the defendants have standing to contest McWright’s claim that he is Stroughter’s illegitimate child.

McWright next asserts that the defendants have not used the appropriate procedural device to challenge a formal acknowledgment, asserting that the defendants must file an action to annul. We disagree.

We initially note that McWright is attempting to use a formal acknowledgment to prove that he is the illegitimate child of Stroughter for the purposes of the wrongful | indeath and survival action. This court explained the effects of a formal acknowledgment in Rousseve v. Jones, 97-1149 (La.12/2/97), 704 So.2d 229, 232-233:

An acknowledgment of an illegitimate child by authentic act effectively creates a presumption of biological parentage. Conversely, the acknowledgment is premised on a biological relationship, which is the reason for the acknowledgment. An authentic act of acknowledgment is a solemn statement by the ack-nowledger that he believes a child is his. The acknowledgment does not cause the child to be his; it merely acknowledges that he believes it is. When the acknowledged fact is ultimately untrue, the acknowledgment may be null, absent some overriding concern.

Thus, McWright is offering the acknowledgment as proof of Stroughter’s belief that McWright was his illegitimate child. As evinced by Succession of Robinson, however, this presumption of parentage is open to contestation under Article 207. Robinson, 654 So.2d at 685. To read Article 207 to require those who may contest the claims of an illegitimate child to bring an entirely new action would be time consuming and unnecessarily burden the judicial system. We thus find that the defendants may contest Stroughter’s claim that he is an illegitimate child in this proceeding.

Having determined that the defendants may contest the validity of Stroughter’s formal acknowledgment in the instant proceeding, we next review the correctness of the lower courts’ decision to grant the defendants’ Exception of No Right of Action.

In discussing acknowledgment of a child in the context of successions, the Robinson court concluded that the validity of an acknowledgment depends on the existence of a biological relationship:

Although [the Civil Code] does not expressly preclude executing an acknowledgment where no biological relationship exits, this conclusion is self-evident and definitional of an acknowledgment. An acknowledgment is an avowal emanating from the “mother” or “father” to establish maternal or paternal filiation. The word “filiation” describes the fact of biological parentage. Thus, through the acknowledgment, the “mother” or “father” provides proof of maternal or paternal filiation, that is, biological parentage. Absent a biological relationship, the avowal is null. A fact l^cannot be avowed when it has never existed. If the acknowledgment is null, it produces no effects. (Citations omitted)

Robinson, 654 So.2d at 684. Thus, an Article 203 formal acknowledgment absent a biological relationship is a nullity.

The paternity test results revealed a 0% probability that McWright was Stroughter’s child. Based on the principles adopted in Robinson, Stroughter’s formal acknowledgment is null because McWright is not Stroughter’s biological child. Therefore, the defendants have rebutted the presumption of parentage due to the absence of a biological relationship between the tort victim and McWright. Accordingly, the lower courts properly granted the defendants’ exception of no cause of action because McWright does not belong to the class of persons who may recover wrongful death and survival damages as he is not the decedent’s biological child.

CONCLUSION

Pursuant to La.Rev.Stat. 13:4231, we find that the 1982, 1983, and 1984 criminal stipulations of paternity are not binding on a defendant who was not a party to the criminal child support proceedings and that a defendant with standing to contest the paternity of an illegitimate child may relitigate the issue. Moreover, based on Article 207, we find that the defendants in this action, as named parties in a wrongful death and survival action in which the plaintiff has claimed that he falls within the primary class of beneficiaries who may recover damages, has standing to contest the plaintiffs claim that he is the illegitimate child of the decedent. Accordingly, we affirm the lower courts and hold that the plaintiff, who was formally acknowledged as an illegitimate child, is not a child for the purposes of a wrongful death and survival action where he is not the biological child of the decedent.

AFFIRMED.

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

KIMBALL, J., dissents and assigns reasons.

JOHNSON, J., dissents and assigns reasons.

VICTORY, J., concurs.

WEIMER, J., additionally concurs and assigns reasons.

L CALOGERO, Chief Justice

dissents and assigns reasons:

In addition to agreeing generally with the reasons given by Justice Kimball and Justice Johnson, I dissent from the majority decision because I believe that Onterio McWright qualifies as one of the “children” of decedent Andrew Stroughter as that term is defined by the Louisiana Civil Code for purposes of Louisiana’s wrongful death and survival action statutes, La. Civ. Code. 2315.1 and 2315.2. Thus, I would reverse the court of appeal decision granting the exception of no right of action filed by the defendants in this case.

According to La.Code Civ. Proc. art. 927, an exception of no right of action tests whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. As the majority notes, “children” of a decedent fall within the primary category of persons designated by La. Civ.Code art. 2315.1(A) and 2315.2(A) as those who are allowed to assert wrongful death and survivor actions. Thus, the question presented by this ease is whether Mr. McWright qualifies as one of Mr. Stroughter’s “children” for purposes of the Louisiana Civil Code.

The word “children” is defined by La. Civ.Code art. 3506, in the section of the code entitled “Of the Signification of Sundry Terms of Law Employed in this Code,” as follows:

12Under this name are included those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law, as well as descendants of them in the direct line.

La. Civ.Code art. 3506(8) (emphasis added). Further, La. Civ.Code art. 207, relative to “Requirement to prove filiation,” states as follows:

In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under 209.

(Emphasis added.) The above language contemplates three distinct methods by which an illegitimate child’s filiation to a parent may be “established in the manner provided by law,” therefore qualifying him as one of the decedent’s “children” as that term is defined by La. Civ.Code art. 3506(8):(1) by legitimation either by subsequent marriage of the parents under La. Civ.Code art. 198 or by notarial act under La. Civ.Code art. 200, (2) by acknowledgment under La. Civ.Code art. 203, or (3) by instituting a proceeding under La. Civ. Code art. 209.

Although the majority states specifically that Mr. McWright is “a formally acknowledged illegitimate child,” it affirms the court of appeal decision granting the defendants’ exception of no right of action. The majority’s decision is based on the fact that the notarial act by which Mr. Stroughter formally acknowledged Mr. McWright as his child did not contain a declaration of his intent to legitimate the child. Thus, the majority implicitly holds, contrary to the language of the Louisiana Civil Code, that the only way an illegitimate child’s filiation to a parent may be established is by legitimation. Since the Louisiana Civil Code clearly sets forth two other methods by which a person may qualify as a child, I disagree with the majority’s conclusion.

Accordingly, I would find that Mr. McWright qualifies as one of Mr. Stroughter’s children under the definition of that word set forth in La. Civ.Code art. 133506(8) because his filiation to Mr. Stroughter has been established by one of the three methods provided by law and enumerated in La. Civ.Code art. 207 — i.e., by Mr. Stroughter’s formal acknowledgment pursuant to La. Civ.Code art. 203. Thus, I respectfully dissent.

| KIMBALL, Justice,

dissenting:

I respectfully dissent on the basis that I find that the defendants cannot challenge the father Andrew Stroughter’s acknowledgment, in which he admitted paternity and agreed to pay child support, many years after the judgment of child support became final. The child support judgment could only be challenged by an action for nullity within one year of the judgment under La. C.C.P. art.2004.

The majority asserts that La. R.S. 14:75.2 is criminal in nature, and therefore the peremptive one-year period under La. C.C.P. art.2004 does not apply. An acknowledgment of paternity should not be distinguished for consideration in civil and criminal suits. La. R.S. 14:75.2 provides for criminal neglect of family. The majority asserts that jurisprudence has held that a proceeding for criminal neglect of family must be converted into a paternity proceeding to establish a civil judgment of paternity, citing State v. Foss, 449 So.2d 159, 161 (La.App. 4 Cir.1984). However, La. R.S. 14:75.2 is a criminal remedy against a defendant who has not carried out his civil obligation to pay child support. The statute has been repealed and now refers to articles in the | ^Children’s Code. The legislature did not intend that an acknowledgment should be treated differently for purposes of criminal punishment and the civil obligation of child support.

In State v. Foss, id., the issue was whether the act of legitimation could be considered as an acknowledgment. The Fourth Circuit stated:

Defendant also argues that the criminal proceedings were improperly converted into a paternity hearing. We do not agree.
Defendant was charged with having violated La.R.S. 14:74. One of the elements which the State must prove is a pre-existing civil liability on the part of defendant to support the minor child. In the case of an illegitimate child this element may be established in one of two ways, viz. by an acknowledgment before a notary public and two witnesses, or by a judgment establishing paternity. State v. Mack, 224 La. 886, 71 So.2d 315 (1954); State v. Braxton, 238 La. 13, 113 So.2d 292 (1959).
In this case the State offered the “Act of Legitimation” as proof of defendant’s pre-existing civil liability to support the minor child. The trial court ruled, and we have affirmed, that the “Act” constituted a formal acknowledgment, by defendant, of the child. This procedure constitutes a necessary part of the State’s case at trial. It does not improperly convert the criminal proceedings into a paternity suit. This contention by defendant is without merit. (Emphasis added.)

Id, 449 So.2d at 161.

Foss supports the fact that the criminal statute was a remedy concerning the preexisting civil liability. The child support obligation is civil in nature, and is utilized under the criminal statute for failure to pay child support. The child support guidelines are provided under R.S. 9:315.2 et seq. rather than in the Code of Criminal Procedure. The acknowledgment of paternity can be asserted under both civil and criminal procedural law and should not be treated differently in either criminal or civil matters.

|3The one year limitation of La. C.C.P. art.2004 applies to an acknowledgment. It is considered as a period of peremption rather than prescription. Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291; Burkett v. Property of Douglas, 575 So.2d 888, 892 (La.App. 2 Cir.1991). Statutes of peremption destroy the cause of action itself; after the time limit expires, the cause of action is lost and no longer exists. La. C.C. 3458; Reeder, supra; Russland Enterprises, Inc. v. City of Gretna, 98-676 (La. 5 Cir. 1/26/99) 727 So.2d 1223. The proper procedural device for raising an issue of peremption is an exception of no cause of action. Id.

In any case, the stipulation entered into by the father in the child support suit evidenced, in my view, an intent to acknowledge MeWright as his child pursuant to La.R.S. 9:315.2 et seq. In his stipulation, Stroughter conceded that he was the father of MeWright. Stroughter had a reasonable belief that he was the father of the child, showed his intent to acknowledge MeWright as his child by stipulating his paternity in court, and paid child support for him until he was 18. This indicates to me that he was the father.

Before DNA testing existed, the courts relied on other means of determining paternity. The acknowledgments that were previously acceptable should not be thrown out because of the possibility of DNA testing that was not available when previous acknowledgments took place. The State’s public policy is to provide for the well-being of children. The majority’s resolution undermines the public policy of the State and the [ legislature’s intent in enacting the applicable statutes. See La.C.C. art. 7. Outside parties should not be able to come in now and request DNA testing of acknowledgments that were valid for many years. The stipulated acknowledgments and resulting judgments in previous civil and criminal cases should remain valid and final. They should only be challenged within the one year period from the discovery of any fraud or ill practices under La. C.C.2004.

I cannot find that the legislature intended that past valid acknowledgments should be disregarded. Legislation has not been changed to indicate that DNA testing can now be used for this purpose.

| ¶ JOHNSON, Justice,

dissenting:

I respectfully dissent from the majority’s decision on the basis that La. C.C. art. 207 discriminates against illegitimate children based on circumstances incident to their status at birth and thereby deprives them of equal protection of the laws. Article I, Section 3 of the Louisiana Constitution and the Fourteenth Amendment to the United States Constitution provide that “no person shall be denied the equal protection of the laws.” In cases involving a person’s status as legitimate or illegitimate, Louisiana courts apply intermediate scrutiny. Pace v. State, through Louisiana State Employees Retirement System, 94-1027 (La.1995) 648 So.2d 1302, 1305. As this Court found in Pace,

“A law that treats illegitimate children less favorably than legitimate ones discriminates between them because of birth and is unconstitutional unless the state carries its burden of showing that the classification substantially furthers a legitimate state purpose.”

Id. at 1305.

[ ¡>,Over thirty years ago, this Court began conferring upon illegitimate children the same rights as legitimate, legitimated, and adopted children when it adopted the holding of the United States Supreme Court in Levy v. Louisiana. Levy v. Louisiana, 253 La. 73, 216 So.2d 818 (1968). In Levy, this Court acknowledged that denying an illegitimate child a right of action under La. C.C. art. 2315 is a violation of that child’s right to equal protection under the laws where a parent “openly and publicly recognizes and accepts an illegitimate to be his or her child and the child is dependent upon the parent.” Id. at 820.

In the wake of Levy, this Court extended equal protection to recover for the death of a parent to illegitimate children in the same manner previously enjoyed by legitimate, legitimated, and adopted children. For example, in Weber v. Aetna Casualty & Surety, unacknowledged illegitimate children were granted a cause of action to recover workers’ compensation survival benefits in Louisiana. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 171-72, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). Subsequently, the decision rendered in Pace v. State similarly allowed informally acknowledged illegitimate children to recover survivors benefits from the Louisiana State Employees Retirement System. Pace v. State, 648 So.2d 1302, 1310.

In recent years, however, this Court has engaged in an unsettling trend of permitting defendant tortfeasors to undermine the equal protection rights of illegitimate children in an effort to limit their liability, and in some cases avoid it altogether. In Jenkins v. Mangano Corp., the defendant was allowed to assert filiation on behalf of the victim’s illegitimate daughter where she would not have been able to assert such an action herself. Jenkins v. Mangano Corp., 00-0790, (La.11/28/00), 774 So.2d 101. In Jenkins, the victim died without any legitimate or acknowledged illegitimate children. Id. at 103. His daughter never made any efforts to filiate herself to her father Lwithin the time limits allowed by La. C.C. art. 208. Id. at 105. However, to support a peremptory exception of no right of action against the victim’s mother, the defendants were permitted to assert that the victim had informally acknowledged his daughter, even though it was then two years after the victim’s death and twenty-six years after the daughter’s birth. Id. at 103. By allowing the defendant to assert filiation in this manner to defeat the mother’s claim, the defendants were essentially given greater rights as to the daughter’s status as an illegitimate than she herself had. Id. at 106 (Johnson, dissenting).

Similarly, in the case sub judice, defendants’ have been permitted to rescind the victim’s acknowledgment of Onterio McWright, even though the decedent, Stroughter, never made any attempt to do so. McWright is the acknowledged illegitimate child of Andrew Stroughter. Stroughter executed a notarized stipulation that serves as a formal acknowledgment of paternity in 1982, and reaffirmed his belief that McWright was his biological child in stipulations executed in 1983 and 1984. Furthermore, Stroughter supported McWright financially through child support payments until adulthood. La. R.S. 9:392(7)(b) allows an alleged father to rescind an acknowledgment at any time, where he is not the biological father of the child. No evidence was presented that Stroughter attempted to institute proceedings to rescind his acknowledgment. It is therefore clear that Stroughter believed that McWright was his child, and continued in this belief up to the time of his death.

Article 207 denies both acknowledged and unacknowledged illegitimate children equal protection under the law by subordinating their claims to those of legitimate, legitimated, and adopted children. If McWright had been born of a marriage between Stroughter and Harris, or if McWright had been legitimated by authentic act, then his wrongful death claim could not have been challenged by the defendants under Article 14207, even if, as is the case here, he did not have a biological relationship with Stroughter. In fact, had the situation been reversed, and McWright perished in an accident without issue, Stroughter, as his acknowledged father, could have recovered in a wrongful death action and Stroughter’s claim would not have been subject to challenge, even though the two have no biological relationship. The State’s goal of averting fraudulent claims asserted by purported illegitimate children is not furthered by upsetting long established familial relationships and subjecting the claims of all illegitimate children to attack by “any party”, especially where the child has been formally acknowledged and financially supported by the decedent. Such a result has the effect of denying illegitimate children the equal protection of the laws.

hWEIMER, J.,

concurring.

I concur in the majority’s holding in this case and write separately only to point out that adoption can serve the same purposes as a biological relationship for purposes of affording a cause of action for wrongful death and survival damages pursuant to LSA-C.C. arts. 2315.1 and 2315.2. See, LSA-C.C. art. 214.

      . La.Rev.Stat. 14:75.2, which was repealed by Acts 1993, No. 442, § 4, effective June 9, 1993, stated:
      In cases in which the responsible parent or other persons owing a duty of support and the district attorney stipulate to an order of support, the court shall have the power to issue an order of support under the provisions of R.S. 14:75 without the necessity of instituting criminal proceedings.

      . Civ.Code art. 2315.1, which provides for a survival action, states in pertinent part:
      A. If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property, or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
      In addition, Civ.Code art. 2315.2, which provides for a wrongful death action, states in pertinent part:
      A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

      . La.Code Civ. Proc. art.2004 provides:
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiffs in the nullity action of the fraud or ill practices.

      . LSA-R.S. 14:75.1 and 14:75.2 were repealed by Acts 1993, No. 442, § 4, effective June 9, 1993. Under the Historical and statutory notes following the repealed statute states in part:
      The repealed sections related, respectively, to allocation of arrearages collected from a person adjudged guilty of criminal neglect, and to stipulation to an order of support. ...
      See, now, Ch.C. arts. 1354, 1355. (Emphasis added.)

      . La. C.C.P. art.2004 states:
      Art.2004. Annulment for vices of substance; peremption of action
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
      C.The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

      . La. C.C. art. 7 provides:
      Art. 7. Laws for the preservation of the public interest

        Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.

      . La. C.C.P.2004, permitting annulment of any final judgment obtained by fraud or ill practices is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure. Bette Pass Terminal, Inc. v. Jolin, Inc., 2001-0149 (La.10/16/01), 800 So.2d 762.

      . LSA-Const. Art. 1, Sec. 3 provides:
      No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall
      arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the later case as punishment for crime.

      . U.S.C.A. amend. XIV provides, in pertinent part:
      Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


source: Caselaw Access Project

author: hPER CURIAM. 11WEIMER, J., | ^VICTORY, J.,

license: Public Domain

text:
    In re Donald A. HOFFMAN.
    No. 2003-B-2499.
    Supreme Court of Louisiana.
    Sept. 9, 2004.
    Rehearing Denied Oct. 29, 2004.

      Charles B. Plattsmier, Baton Rouge, Shana Maurice Broussard, Shreveport, Counsel for Applicant.
    Luther F. Cole, Long Law Firm, Jennifer J. Vosburg, Michael A. Paterson, Donald A. Hoffman, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Donald A. Hoffman, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

By last will and testament dated March 6, 1997, Milton Lorning bequeathed the sum of $10,000 each to his nephews, Jack J. Walker and Julian Walker, and the sum of $5,000 to his niece, Lillian Walker Was-serman. Mr. Lorning also bequeathed the sum of $2,000 each to Jack’s daughter, Peggy Ann Walker Burns, and her two children. Mr. Lorning’s second wife was the residual legatee of the rather considerable estate.

When Mr. Lorning died in July 1997, one month prior to his 99th birthday, some legatees, including Jack Walker, were disappointed to learn of the provisions of the will. In September 1997, Jack retained respondent to represent him in a contest of Mr. Lorning’s will. However, the representatives of Mr. Lorning’s succession were reluctant to negotiate with respondent on Jack’s behalf unless respondent represented all of Mr. Lorning’s surviving nieces and nephews. Respondent relayed this information to Jack and Peggy, who is an attorney practicing in Colorado. Thereafter, at Jack’s insistence, Julian and Lillian reluctantly agreed to participate in the will ^contest. By agreement with Jack, Julian and Lillian were not responsible for any legal fees or expenses incurred in connection with the will contest. Julian and Lillian also agreed that Jack would serve as respondent’s primary contact with the Walker family, so as not to “duplicate things” and thereby “build up the legal fees.”

In January 1998, Peggy drafted an affidavit authorizing respondent to negotiate and settle claims on behalf of Julian and Lillian; Jack, in turn, sent the affidavit to his brother and sister for their signatures. On January 23, 1998, Julian executed the one-paragraph affidavit, which states in its entirety as follows:

To whom it may concern:

I am represented by attorney Donald A. Hoffman with respect to a contest of Milton Lorning’s will. Donald A. Hoffman is, furthermore, my representative with respect to any settlement negotiations which may take place with respect to such contest. Mr. Hoffman is authorized to accept, on my behalf, any amount in settlement of my claim as to the will of Milton Lorning, which is in excess of the amount of the legacy to me contained in such will. I will accept such settlement in full release of any further claims I may have against the will.

Lillian executed her affidavit on January 26, 1998. The notarized affidavits were then returned to respondent. Respondent did not communicate with Julian or Lillian either before or after he received the affidavits, with the exception of a letter confirming “that in connection with our law firm’s representation of Mr. Jack Walker in the captioned matter, we are also authorized to represent you and all other Walker heirs and legatees.”

|3The case proceeded to a mediation held on June 15, 1998. Julian and Lillian did not participate in the mediation, and though Jack was not personally present, his son and daughter were in attendance with respondent. During the mediation, the defendants offered to settle the claims of the Walker family against the Lorning succession for the total sum of $225,000. Peggy accepted the settlement offer on Jack’s behalf. Respondent did not communicate with Julian or Lillian in any manner regarding the settlement. Rather, Jack called Julian and Lillian several days after the mediation and, without disclosing the total amount of the settlement, informed them that “I got you an extra $10,000.”

On June 24, 1998, Julian spoke with respondent by telephone. In response to Julian’s inquiry, respondent informed him that the matter had settled for $225,000. Julian told respondent that “ten thousand dollars on a two hundred” was “not the way it was supposed to be.” Respondent did not reply further, or otherwise seek to ascertain the nature and extent of Julian’s objection, but simply suggested to Julian that “you’ll have to talk to your brother.”

On June 29, 1998, Jack sent respondent a letter setting forth his instructions concerning the distribution of the settlement funds. Respondent acknowledged Jack’s distribution by return correspondence dated July 2, 1998. On July 22, 1998, Jack executed the settlement agreements and releases, with respondent signing the documents on behalf of Julian and Lillian. On July 30, 1998, in accordance with the instructions previously given by Jack, respondent disbursed $20,000 to Julian, $15,000 to Lillian, a total of $13,000 to Jack’s children and grandchildren, and $159,500 to 14Jack. Respondent did not communicate with Julian or Lillian prior to making these disbursements. The check to Julian was accompanied by a cover letter from respondent, stating:

I am pleased to enclose a check in the amount of $20,000 in accordance with the settlement in the captioned matter. Per the notarized authorization dated January 23,1998,1 accepted this amount on your behalf since it exceeds by $10,000 the amount of the legacy contained in Article LE. of the will of Milton Lorning dated March 6, 1997. In accordance with the conditions of the mediation, the terms of the Settlement Agreement are strictly confidential.

The cover letter accompanying Lillian’s settlement check was substantially identical to Julian’s letter, with the exception of the settlement amount and the date of the notarized authorization. Neither Julian nor Lillian received a copy of the executed settlement agreements and releases from respondent.

In 1999, Julian and Lillian filed a civil suit against Jack in Florida, contesting the unequal disbursement of the settlement funds. The dispute between the siblings was never resolved, however, as Julian and Lillian dismissed the case upon Jack’s death in March 2001.

Julian and Lillian also filed a complaint against respondent with the ODC, stating that they “were not consulted on [the] division of proceeds by Mr. Hoffman nor did we consent to it.” In his response to the complaint, respondent asserted that his client “was Mr. Jack Walker, the individual who retained me, paid our law firm’s fees, and authorized disbursement of the settlement funds.” Respondent subsequently conceded that Julian and Lillian were his clients, but asserted they were so “only in accordance with the limited terms and conditions of our agreement, i.e., that I was | ñauthorized to accept, on his and her behalf, any amount in settlement in excess of the legacy in the Will of Milton Lorn-ing.” [emphasis in original]. Respondent further denied that he was required to obtain the consent of Julian and Lillian prior to the distribution of the settlement funds. To the contrary, respondent asserted that “at all times I was required to act solely on the instructions of Mr. Jack Walker, in consultation with his daughter, Attorney Peggy Burns, with respect to the disbursement of funds.”

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent, alleging that his conduct in the Walker matter violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.8(g) (conflict of interest/aggregate settlement of the claims of two or more clients), and 8.4(a) (violation of the Rules of Professional Conduct). Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Recommendation

Considering the evidence presented, the hearing committee made the following factual findings relating to the conflict of interest issue:

1. An attorney-client relationship existed between respondent and Jack Walker, Julian Walker and Lillian Wasserman;
2. Respondent properly settled the matter on behalf of the Walker family;
|fi3. Respondent participated in making an aggregate settlement of the claims of the Walker family;
4. Julian Walker and Lillian Wasser-man did not consent to this aggregate settlement; and
5. Respondent’s failure to obtain the consent of Julian Walker and Lillian Wasserman constitutes negligent misconduct.

The committee made the following factual findings relating to the issue of respondent’s failure to communicate with Julian and Lillian:

1. An attorney-client relationship existed between respondent and Jack Walker, Julian Walker and Lillian Wasserman;
2. Respondent failed to reasonably communicate with Julian Walker and Lillian Wasserman during the course of his representation on their behalf;
3. Respondent failed to provide Julian Walker and Lillian Wasserman with sufficient information to participate in decisions concerning the objectives of the representation; and
4. Respondent’s failure to determine the method of communication preferred by Julian Walker and Lillian Wasserman constitutes negligent misconduct.

Based on these factual determinations, the committee concluded that respondent violated the Rules of Professional Conduct as charged in the formal charges.

By his actions, respondent negligently violated duties owed to his clients, and he caused actual injury to his clients. Respondent’s failure to ensure that Julian and Lillian were kept informed about the status of the settlement negotiations and to ensure that Julian and Lillian had consented to the aggregate settlement resulted in the filing of a separate lawsuit by Julian and Lillian against their brother Jack. Julian and Lillian suffered financial loss by having to pay attorney’s fees in this separate litigation. 17Finally, if in fact Julian and Lillian had an agreement with Jack to distribute the proceeds of the settlement equally, Julian and Lillian have been deprived of additional funds that they were rightfully entitled to receive.

In aggravation, the committee recognized respondent’s experience in the practice of law (admitted 1969) and the vulnerability of the victims. In mitigation, the committee recognized the absence of a pri- or disciplinary record, the absence of a dishonest or selfish motive, respondent’s cooperative attitude toward the proceedings, and his good character and reputation.

Turning to the issue of an appropriate sanction, the committee determined the baseline sanction for respondent’s conduct is a reprimand. Standard 4.33 of the ABA’s Standards for Imposing Lawyer Sanctions provides that a reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client will adversely affect another client, and causes injury or potential injury to a client. Respondent failed to make an independent determination whether his representation of Julian and Lillian would adversely affect his representation of Jack, or vice versa. Furthermore, respondent failed to determine whether Julian’s and Lillian’s interests with regard to the distribution of the settlement proceeds were adverse to Jack’s interests. As a result, Julian and Lillian suffered actual injury. Furthermore, Standard 4.43 provides for a reprimand when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. Respondent owed an obligation to reasonably communicate with his clients. He failed to fulfill this obligation. Respondent’s misconduct injured his clients by requiring them to seek other legal recourse to recover funds they were entitled to receive.

IsBased on this reasoning, the committee recommended that respondent be publicly reprimanded.

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

Disciplinary Board Recommendation

The disciplinary board found the record supported the hearing committee’s finding that respondent took on the representation of Julian and Lillian, and that he participated in an aggregate settlement of his clients’ claims. However, the board rejected as erroneous the committee’s finding that Julian and Lillian did not consent to settlement in the aggregate. The board noted that while it may be true respondent did not directly consult with Julian and Lillian to obtain their consent to settle in the aggregate, he received their signed affidavits which clearly express the clients’ intentions. The affidavits granted respondent limited authority to negotiate a settlement on their behalf and to accept any amount in excess of their legacies. It further stated that they would accept any such settlement. The board found that under Rule 1.2 (scope of the representation) of the Rules of Professional Conduct, a client has the ultimate authority to limit the purposes to be served by the representation. Because the scope and objectives of the representation were made clear by the affidavits and the clients expressed their consent to accept any amount in excess of their legacies, there was no need for respondent to further communicate with Julian and Lillian.

The board further noted that Julian and Lillian participated in the will contest primarily to enable Jack to pursue his claim (and bear all expenses). So long as Julian and Lillian did not receive less than they would have received under Mr. Lorning’s will without a contest, they had no interest in the proceedings and to confirm this they

19expressly authorized respondent in advance to accept in settlement any amount in excess of the testamentary legacies in their behalf. This specific authorization defeats their later contention that they had any understanding that any settlement funds would be divided equally or that they had any interest in any active involvement in the matter.

Finally, the board noted that respondent had no reason whatever to question Jack’s directive as to the division of the settlement, which’ satisfied entirely the authorization previously given by Julian and Lillian. There is no suggestion that respondent made any misrepresentations or otherwise deceived Julian or Lillian. The board concluded that perhaps respondent’s “only ‘fault’ was to achieve such a fine result.”

In sum, the board determined

that respondent properly settled the matter in the aggregate and with the consent of his clients, Julian Walker and Lillian Walker Wasserman, who were always aware that their participation in any settlement would be limited subject only to being for amounts greater than their legacies. The board further finds that the clients limited the scope of the representation to serve their objectives which they expressed in their affidavits. Given the limited scope of the representation respondent’s actions were in accord with the Rules of Professional Conduct and the board finds that he did not violate Rule 1.4 (communication) or Rule 1.8 (conflict) or Rule 8.4(a) of the Rules of Professional Conduct.

Based on this reasoning, the board recommended the formal charges against respondent be dismissed. One member of the board dissented.

The ODC sought review of the board’s ruling in this court. We ordered the parties to submit briefs addressing the issue of whether the record supports the disciplinary board’s report. After reviewing the briefs filed by both parties, we docketed the matter for oral argument.

J^DISCUSSION

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

At the outset, we note that Rule 1.7(b) of the Rules of Professional Conduct permits an attorney to represent multiple clients in a single legal matter only if the lawyer reasonably believes that all of the clients will receive competent representation notwithstanding a potential conflict, and only if each client consents, after full disclosure of “the implications of the common representation and the advantages and risks involved.” These limitations permit a lawyer to represent multiple parties whose interests are generally aligned, assuming those parties consent after consultation. In the instant case, conceding for purposes of argument that the interests of Jack, Julian, and Lillian may have been aligned at the outset of respondent’s representation, it is clear that respondent did not first obtain the informed consent of each of his clients to such representation. Specifically, respondent failed to discuss with his clients the nature of their potentially differing interests and the risks of the joint representation. Instead, he relied upon the daughter of one of his clients to draft an affidavit of representation, which in turn respondent’s other clients signed without having the benefit of the advice of counsel. The affidavit signed by Julian and Lillian does not disclose “the implications of the common representation and the advantages and risks involved,” nor does it constitute a voluntary and intelligent waiver by respondent’s clients of the potential conflict. Under these circumstances, respondent did not comply with his obligations under Rule 1.7(b). More importantly, however, | ^respondent’s failure to appreciate the potential conflict between Jack and Julian and Lillian, and to guide his conduct accordingly, led directly to his violation of Rule 1.8(g) in the course of his settlement of the siblings’ claims against the Succession of Milton Lorning.

Once the joint representation of Jack, Julian, and Lillian commenced in January 1998, respondent owed each of his clients an equal degree of loyalty, and he could not favor the interests of one client over another. Thereafter, upon undertaking to negotiate a settlement of the succession matter on his clients’ behalf, respondent was obliged to comply with Rule 1.8(g), which at all times relevant herein provided:

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, ... unless each client consents after consultation, including disclosure of the existence and nature of all the claims ... involved and of the participation of each person in the settlement, [emphasis added]

Without the aggregate settlement rule, a lawyer might be tempted “to sacrifice the interests of one client to gain an advantage for the other.” Charles W. Wolfram, Modem Legal Ethics (1986), p. 493. Aggregate settlements of the claims of multiple clients are not per se impermissible, but during the negotiation of the aggregate settlement, the lawyer must confer with all of his clients and fully disclose all details of the" proposed settlement, including information about each client’s claim and share of the proposed settlement. Rule 1.8(g) explicitly requires “consultation” before a client consents to an aggregate settlement. The lawyer must confer with all clients directly, rather than communicating with one client and expecting that client to confer with the other clients. Gail K. Gelb, Common Ethical Problems, 79 Mass. L.Rev. 167, 174-75 (1994). Unanimous informed consent by the lawyer’s clients is required before an [ ^aggregate settlement may be finalized. ABA/BNA Lawyers’ Manual on Professional Conduct, 51:375 (1999). The requirement of informed consent cannot be avoided by obtaining client consent in advance to a future decision by the attorney or by a majority of the clients about the merits of an aggregate settlement. Id.

Applying these principles to the instant case, it is clear that respondent failed to make an adequate disclosure to his clients of relevant information concerning the settlement of the will contest. During the June 1998 mediation session, the defendants offered to settle the claims of the Walker family against the Lorning succession for the total sum of $225,000. Respondent did not communicate with all of his clients concerning this proposal; rather, after obtaining Jack’s consent to the settlement, he accepted the defendants’ proposal on behalf of all of his clients. Respondent never gave Julian or Lillian the opportunity to exercise their absolute right to control the settlement decision. See Rules 1.4 (a lawyer shall give a client sufficient information to participate intelligently in decisions concerning the objectives of the representation) and 1.8(k) (a lawyer shall not obtain a client’s prospective consent to settle a claim without further authorization); see also Rule 1.2(a), pursuant to which a lawyer must abide by the client’s decision whether to settle a matter. Respondent can take no comfort that the affidavit of representation signed by Julian and Lillian absolved him of any responsibility in this regard, as the informed consent requirement cannot be | ^avoided by obtaining client consent in advance to a future aggregate settlement proposal. Respondent then compounded his misconduct by proceeding to distribute the settlement proceeds in accordance with the wishes of only one of his clients, and over the expressed objection of another client. For purposes of this disciplinary proceeding, and respondent’s obligations under the Rules of Professional Conduct, it is of no moment whether the Walker siblings had actually agreed to divide the settlement funds equally. Prior to accepting the settlement offer, respondent should have resolved with all of his clients the issue of the allocation of the settlement proceeds.

These same issues have been confronted in other states, both in civil cases and in disciplinary matters arising out of aggregate settlements. One disciplinary matter is particularly noteworthy for its striking similarity to the instant case. In State ex rel. Oklahoma Bar Ass’n v. Watson, 897 P.2d 246 (Okla.1994), disciplinary proceedings were brought against a lawyer who received an aggregate settlement offer from the defendant in a personal injury and wrongful death case. Without consulting all of his clients, the lawyer accepted the settlement and determined on his own how to divide it among the decedent’s estate, the decedent’s second wife, and the decedent’s minor daughter from his first marriage. The lawyer prepared no documents to present to the clients to account for the award and how it was allocated. In particular, the lawyer did not contact the decedent’s wife before accepting the offer, and he never informed her of the total award, its distribution, and the participation of each person in the settlement. The Oklahoma Supreme Court found that the lawyer made an aggregate settlement without obtaining each client’s consent or advising each client as to the proposed settlement and distribution, in violation of the professional rules. Rejecting the lawyer’s argument that he was required to consult only with the personal 114representative of the decedent’s estate, whom the lawyer asserted was the “true client,” the court pointed out that the lawyer “had three clients in the action and owed to each the right of disclosure and consent in accepting and distributing the award.”

Watson and the instant case demonstrate with perfect clarity that whenever an attorney attempts to jointly represent two or more individuals in a legal matter, the potential always exists for the lawyer to be pulled in different directions because of the differing interests of the clients. Such conflicts may arise at the beginning of the representation when the lawyer is making a determination whether to accept the clients, during the representation when new factual information is obtained that may put some or all of the clients at odds with each other, or at the time of settlement discussions. While conflict in a joint representation may not always be easy to identify or resolve, that difficulty is not implicated here. At a minimum, respondent should have obtained the informed consent of his clients — Jack, Julian, and Lillian — to the disbursement of the aggregate settlement that benefited all of them. Full disclosure and consent are required in handling aggregate settlements, and respondent failed at both.

Having found professional misconduct, we conclude the disciplinary board erred in dismissing the charges against respondent. We now turn to a discussion of the appropriate sanction for respondent’s misconduct.

The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1855 (La.1981). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses 11fiinvolved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Based on the record before us, we conclude that respondent knew or should have known of the conflict of interest among his séveral clients, but that he did not fully disclose the possible effect of the multiple representation, resulting in serious actual harm to Julian and Lillian. Under such facts, the baseline sanction is a suspension from the practice of law.

As aggravating factors, we recognize the vulnerability of the victims, Julian and Lillian, and respondent’s substantial experience in the practice of law. In mitigation, we recognize that respondent has no prior disciplinary record in more than thirty years of practice, and that he has demonstrated a cooperative attitude toward these proceedings. Evidence was also introduced as to respondent’s good reputation in the legal community and in the community at large.

Considering all the facts of this case, we conclude the appropriate sanction for respondent’s misconduct is a three-month suspension from the practice of law. However, in light of the mitigating factors, we will defer this suspension in its entirety, subject to the condition that any misconduct during a one-year period following the finality of this judgment may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Donald A. Hoffman, Louisiana Bar Roll number 6894, be suspended from the |1Rpractice of law for a period of three months. It is further ordered that the suspension shall be deferred in its entirety, subject to the condition that any misconduct by respondent during a one-year period following the date of finality of this court’s judgment may be grounds for making the deferred 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.

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

KNOLL, J., concurs in part and dissents in part for reasons assigned by WEIMER, J.

VICTORY, J., dissents.

11WEIMER, J.,

concurring in part and dissenting in part.

I agree with the majority opinion except I would impose as a sanction a public reprimand as recommended by the hearing committee. In thirty years of practice, the respondent has no prior disciplinary record, has been cooperative in the disciplinary proceedings, and his reputation is outstanding. His ethical lapse came in failing to appropriately segregate the settlement from the disbursement of the settlement proceeds and in failing to afford each of his three clients the same level of attention regarding division of proceeds after the settlement.

| ^VICTORY, J.,

dissenting.

I respectfully dissent and would dismiss the charges as recommended by the Disciplinary Board.

      . Before Jack approached Julian and Lillian to request their participation, he had already obtained the concurrence of Peggy and her two children (one of whom was still a minor) to contest Mr. Lorning’s will.

      . Respondent reviewed the affidavit Peggy drafted before Jack sent it to Julian and Lillian for their signatures. Respondent suggested one minor revision to the draft affidavit, but otherwise made no changes.

      . This was the first and only conversation respondent had with Julian. Respondent never spoke with Lillian.

      . The remainder of the settlement, $17,500, was paid to respondent's law firm as attorney's fees.

      . Julian and Lillian maintained that they had a verbal agreement with Jack to divide the settlement funds equally among the three siblings. For his part, Jack denied that such an agreement ever existed.

      . Rule 1.8(g) was amended effective March 1, 2004 to require that each client give informed consent "in a writing signed by the client.” Prior to the amendment, a lawyer was not required to obtain written consent to an aggregate settlement, although a prudent lawyer would have made it a practice to do so.

      . Respondent has argued that he was permitted to limit the objectives of his representation of Julian and Lillian pursuant to Rule 1.2(b), which provides that a lawyer "may limit the objectives of the representation if the client consents after consultation.” Specifically, he asserts that he was authorized to settle the succession matter on behalf of Julian and Lillian so long as he obtained for them an amount in excess of their legacies in Mr. Lorning's will. Even assuming that Julian and Lillian could grant respondent such a limited representation, see Rules 1.8(g) and 1.8(k), it is clear that they did not give their informed consent to the representation after “consultation” with respondent. Respondent has conceded that he never spoke with Julian or Lillian prior to the time they executed their affidavits of representation.


author: JOHNSON, J.,

text:
    TRAVELERS INSURANCE COMPANY v. RELIABLE HOME HEALTH CARE, INC.
    No. 2003-C-2876.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Reliable Home Health Care, Inc., applying for Reconsideration of this Court’s action dated July 2, 2004; Office of Workers’ Compensation, District No. 8, No. 97-06343; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1762.

Reconsideration not considered.

JOHNSON, J.,

would grant reconsideration of the writ for the following reasons:

The issue of subject matter jurisdiction may be raised at any stage in the proceedings, including by the Court on its own motion. See Boudreaux v. State, Dept. of Transp. and Dev., 01-1329 (La.2/26/02) 815 So.2d 7, 12-13. Hearing officers have been granted original exclusive jurisdiction over claims for compensation or benefits pursuant to LSA-R.S. 23:1310.3. See Sampson v. Wendy’s Management, Inc., 593 So.2d 336, 339 (La.1992). The Workers’ Compensation Act provides for the determination of benefits and penalties directly associated with the employee’s work-related injury and his receipt of workers’ compensation benefits. Sampson, 593 So.2d at 339. The OWC hearing officer is not vested with jurisdiction over controversies which do not constitute a “workers’ compensation matter,” which include a claim for indemnification that has no bearing on and is not directly associated with the employee’s work related injury or his receipt of benefits. Id.; see also Ortego v. CXY Energy, (La.App. 3 Cir. 1/10/96), 670 So.2d 217; Pierce v. Louisiana Maintenance Service, Inc., (La.App. 5 Cir. 1/30/96), 668 So.2d 1232.

In this instance, the hearing officer has signed a judgment in favor of Travelers, and it is clear in my mind that the hearing officer has no authority to render a money judgment pursuant to this contractual dispute.


text:
    In re Theodore G. HARTMAN.
    No. 2004-OB-2285.
    Supreme Court of Louisiana.
    Sept. 29, 2004.
   ORDER

Considering the “Motion for Withdrawal of Resignation” filed by respondent, Theodore G. Hartman,

IT IS ORDERED that the motion is granted and respondent’s petition for resignation from the practice of law be and hereby is withdrawn.

FOR THE COURT:

/s/ Chet D. Traylor JUSTICE, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Curklin ATKINS.
    No. 2004-B-1990.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office • of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled funds, failed to promptly deliver funds to a third party upon receipt, failed to act with reasonable diligence and promptness in representing his clients, failed to communicate with his clients, failed to place funds advanced for costs and expenses in his trust account, failed to fulfill his obligations upon termination of the representation, and failed to cooperate with the ODC in its investigation. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Curklin Atkins, Louisiana Bar Roll number 18769, be suspended from the practice of law in Louisiana for a period of three years. One year of this suspension shall be deferred, subject to respondent’s successful completion of a one-year period of probation governed by the conditions set forth in the petition for consent discipline. Any violation of the conditions of probation, or any other misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that 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.

TRAYLOR, J., would reject consent discipline.


text:
    In re William C. PASSMAN.
    No. 2004-B-1831.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled funds, failed to promptly deliver funds to a third party upon receipt, failed to maintain a client trust account, and committed a criminal act. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that William C. Passman, Louisiana Bar Roll number 21797, be suspended from the practice of law in Louisiana for a period of three years. This suspension shall be retroactive to April 21, 2004, the date of respondent’s interim suspension.

IT IS FURTHER ORDERED that 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.


text:
    In re Nicholas PIZZOLATTO, Jr.
    No. 2004-B-1931.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled and converted funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Nicholas Pizzolatto, Jr., Louisiana Bar Roll number 7722, be suspended from the practice of law in Louisiana for a period of six months. This suspension shall be fully deferred, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline. Any violation of the conditions of probation, or any other misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that 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.


text:
    In re Glenda Ann SPEARS.
    No. 2004-B-2373.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   ORDER

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

IT IS ORDERED that Glenda Ann Spears, Louisiana Bar Roll number 25508, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

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

FOR THE COURT:

/s/ Chet D. Traylor JUSTICE, Supreme Court of Louisiana


text:
    In re Rebecca S. YOUNG.
    No. 2004-OB-2342.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Rebecca S. Young, Louisiana Bar 'Roll number 17214, be and she hereby is transferred to disability inactive status. Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Jeffrey P. Victory JUSTICE, Supreme Court of Louisiana


text:
    In re James G. PERDIGAO.
    No. 2004-B-2423.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   ORDER

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

IT IS ORDERED that James G. Perdi-gao, Louisiana Bar Roll number 18376, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ John L. Weimer JUSTICE, SUPREME COURT OF LOUISIANA


author: JjEDWIN A. LOMBARD, Judge.

text:
    William NOTO v. The CITY OF NEW ORLEANS FIRE DEPARTMENT.
    No. 2004-CA-0472.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.

      Robert H. Urann, Robein, Urann & Lu-rye, Metairie, LA, for PlaintiffiAppellant.
    Roger A. Javier, Courtenay, Hunter & Fontana, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   JjEDWIN A. LOMBARD, Judge.

This is an appeal from a ruling of the Office of Workers’ Compensation (OWC) finding: 1) that the claimant was not entitled to temporary total disability (TTD) benefits due to his retirement from the workforce, and 2) that the employer was entitled to reduce the claimant’s supplemental earnings benefits (SEB). For the reasons assigned, we affirm.

Relevant Facts and Procedural History

Claimant/appellant, William Noto (Noto), began his employment with the City of New Orleans (the City), as a firefighter on September 20, 1981. On May 28, 2001, Noto suffered an on the job injury to his right knee. Both Dr. George Chimento, Noto’s treating physician, and Dr. Gordon Nutik, the City’s medical expert, agreed that Noto could not return to his job as a firefighter. Noto was released to medium duty work with restrictions to avoid squatting and climbing.

The City began paying Noto indemnity benefits at the maximum compensation rate of $388.00 per week. On April 5, 2002, a vocational assessment was conducted and possible jobs were identified for Noto at an average rate of $11.28 per hour. On April 21, 2002, benefits were reclassified to SEB but were paid at the same maximum rate of $388.00 per week. On October 1, 2002, Noto’s |2SEB was reduced to $612.79 per month based on the jobs identified through the vocational assessment and approved by Dr. Chimento.

The matter went to trial on September 24, 2003, before OWC judge, Sean A. Jackson. The parties stipulated that the only issues for trial were (1) whether or not the jobs were “available” if Noto applied for, but was not successful, in obtaining any job offers from the employers identified through the labor market survey and (2) whether or not Noto had retired. In the judgment rendered on January 8, 2004, the OWC found that the claimant was retired pursuant to the provisions of La. Rev. stat. 23:1221(3) and that employer was entitled to reduce the claimant’s weekly benefits from $388.00 per week in Temporary Total Disability benefits to $612.79 per month in Supplemental Earnings Benefits because there was work available that the claimant was physically able to perform in his community or geographic region. This appeal followed.

Standard of Review

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737 (citation omitted). Under this standard of review, an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). After reviewing the entire record, the appellate court must determine if the factfinder’s conclusion was reasonable. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where conflicting testimony exists, reasonable Revaluations of credibility and reasonable inferences of fact should not be disturbed. Rosell, supra.

Discussion

Noto asserts two errors on the part of the OWC judge. First, that the OWC judge erred in finding that Noto had retired. Second, that the OWC judge erred in holding that the City was entitled to reduce Noto’s SEB from $388.00 per week to $612.79 per month.

Assignment of Error No. 1

The OWC judge determined that Noto had retired from the workforce pursuant to La.Rev.Stat. 23:1221(3), which provides in pertinent part:

(d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(iii) When the employee retires or begins to receive old age insurance benefits under Title II of the Social Security Act, whichever comes first; however the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.

“A worker retires under La.Rev. Stat. 23:1221(3)(d)(iii) when: (1) the worker withdraws from the work force; or (2) the worker draws old age social security benefits, whichever comes first.” Allen v. City of Shreveport, 93-2928 (La.5/23/94), 637 So.2d 123, 126-127. “Retirement” occurs when the claimant “withdraws from the workforce.” Randazzo v. Boh Brothers Construction Co., 01-1953 (La.App. 4 Cir. 3/27/02), 814 So.2d 671, 674-675. (citation omitted). “[A]n employee who expresses his intention to both retire, or stop working, and not look for other employment and who makes no effort to find another job has retired within the meaning of La.Rev.Stat. 23:1221.” Randazzo v. Boh Brothers Construction Co., 01-1953 (La.App. 4 Cir. 3/27/02), 814 So.2d 671, 675, citing Lytle v. City of New Orleans Through New Orleans Fire Department, 96-0039, p. 5 (La.App. 4 Cir. 9/11/96), 681 So.2d 12, 15.

In this case, Noto testified in his deposition on May 22, 2003, that the only jobs he applied for were the eight identified through the vocational assessment. These jobs were identified for Noto in April and May of 2002 and approved by Dr. Chimen-to on August 26, 2002, but Noto never received an offer of employment. Noto further stated in his deposition that he did not apply for any jobs on his own, and that he was not currently looking for a job, in spite of the fact that he thought he was physically capable of performing some work. When asked why he was not currently looking for a job, his answer was, “no reason.”

At trial, Noto’s testimony regarding his job search remained virtually the same except that he now claimed that his reason for not looking for a job was because he was scared and lacked confidence. Exhibits presented at trial indicate that Noto told both Dr. Nutik and the vocational rehabilitation counselor that he intended to retire. The only evidence in the record that Noto intended to return to work, or even wanted to return to work, was his trial testimony that he had recently enrolled in a real estate appraisal course.

After considering the testimony and the evidence presented, the OWC judge made a factual determination that Noto had indeed retired from the workforce pursuant to La.Rev.Stat. 23:1221(3). The OWC judge had an opportunity to hear Noto’s testimony, consider his credibility, and evaluate his efforts in finding a job. After our review of the record, and in considering the standard of appellate review, |fiwe cannot say that the OWC judge was clearly wrong in concluding that Noto had retired from the workforce.

Assignment of Error No. 2

Noto argues that the OWC judge erred in finding that the City was entitled to reduce his weekly benefits because there was work available that Noto was physically able to perform. Specifically, Noto maintains that the OWC judge erred in concluding that suitable work was available to him and in adopting $11.28 as the average wage of the identified jobs as the basis for Noto’s earning capacity.

The jobs identified for Noto involved office positions with various finance companies and homesteads. The basis for selecting employment opportunities in the financial field was Noto’s representation that he worked as the assistant manager for a finance company prior to being a firefighter. Noto contends that a job in the finance industry is not suitable because his experience in that field dates back twenty-five years. Other than the finance company experience, Noto testified that he owned, operated and leased-out several cabs in the past.

Under the provisions of La.Rev. Stat. 23:1221(3)(a), an employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Freeman, 93-1530 at p. 7, 630 So.2d at 739. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the | ^employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. Rev. Stat 23:1221(3)(c)(i) (emphasis added); Daigle, 545 So.2d at 1009. Actual job placement is not required. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 at p. 9 (La.7/1/97), 696 So.2d 551, 556.

In Banks, the Louisiana Supreme Court set forth a minimum standard that an employer must meet in order to defeat an employee’s claim for SEB by proving job availability. 96-2840, pp. 10-11, 696 So.2d at 557. To prove job availability, an employer must establish, by competent evidence, the following: (1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region; (2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and (3) an actual position available for that particular job at the time that the “claimant received notification of the job’s existence. Id. A suitable job in this context is one that the claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education unless, of course, the employer or potential employer is willing to provide any additional training or education.” Id.

Applying these standards to the present case, we conclude that the City met its burden of proving “job availability” for Noto. As noted above, jobs were identified in area in which Noto had some prior experience, the finance company field and the job descriptions provided for these positions indicate that most of the employers offered training and did not require specialized skills.

We pretermit any discussion on Noto’s argument that the OWC judge erred in adopting the average wage of identified jobs at $11.28. It is clear from the ^stipulations entered into at trial that the average rate of pay for the jobs identified was not in dispute at trial. Specifically, it was agreed that the only issues presented at trial were whether or not there were jobs available to Noto and whether or not Noto had retired.

Conclusion

For the foregoing reasons, we do not find that the judgment of the OWC was clearly wrong or manifestly erroneous. Accordingly, the judgment is affirmed.

AFFIRMED.

      . Notably, although the parties stipulated that this was an issue at trial, under the clear language of the statute availability of a job in the SEB context is not dependent on whether the claimant was successful in obtaining a job identified through the labor market survey but whether the employer met the burden of proving that the claimant was physically able to perform a job which was either offered to him or available to the employee in his or the employers community or reasonable geographic region. See La.Rev.Stat. 23:1221; Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1008-1009 (La.1989)

      . Notably, Noto enrolled in the course less than two weeks prior to trial.