text:
    In re James S. DENHOLLEM.
    No. 2003-B-0935.
    Supreme Court of Louisiana.
    June 6, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS AND DISCIPLINARY PROCEEDINGS

Between February 1999 and August 2000, respondent was a member of the Shreveport law firm of Casten & Pearce. Beginning in June 1999 and continuing through mid-April 2000, respondent misappropriated $17,135.97 from the firm’s clients. Specifically, respondent endorsed seven checks payable to the law firm on behalf of its clients and converted the funds to his own use. Upon discovering respondent’s misconduct, Theodore J. Cas-ten filed a complaint against respondent with the ODC. In his September 18, 2000 correspondence, Mr. Casten noted that respondent had voluntarily ceased engaging in the practice of law and had made full and complete restitution to the clients whose funds were converted. By letter to the |j>ODC dated October 12, 2000, respondent admitted the “factual allegations set forth in the complaint are true.” He also asked to be permitted to resign from the practice of law as expeditiously as possible.

In November 2000, respondent filed a petition in this court, again admitting his misconduct and formally seeking to resign from the practice of law in lieu of discipline. The ODC concurred in the petition. We took the matter under advisement pending the adoption of a specific rule governing resignations from the practice of law by attorneys against whom disciplinary proceedings are pending. Supreme Court Rule XIX, § 20.1, entitled “Permanent Resignation from the Practice of Law in Lieu of Discipline,” was enacted effective July 5, 2001. On September 19, 2001, we denied respondent’s petition, but reserved to him the opportunity to refile his petition pursuant to the newly enacted rule. In re: Denhollem, 00-3104 (La.9/19/01), 801 So.2d 1058.

Inexplicably, respondent chose not to refile his petition for permanent resignation. Accordingly, on November 28, 2001, the ODC filed one count of formal charges against respondent, alleging that his conduct in the underlying matter violated the following provisions of the Louisiana Rules of Professional Conduct: 1.15(a) (safekeeping property of clients or third persons), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The formal charges were served upon respondent by certified mail received on December 14, 2001.

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and hproven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Respondent filed nothing for the hearing committee’s consideration. In its submission, the ODC argued that respondent is guilty of conversion of client funds, dishonesty, and deception. The ODC suggested that respondent’s conduct was intentional and caused significant monetary injury to his clients. Considering the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence, the ODC argued that the baseline sanction for respondent’s misconduct is disbarment. The ODC suggested several aggravating factors are present in this ease, including dishonest or selfish motive, pattern of misconduct, and substantial experience in the practice of law (admitted 1980), but conceded the applicability of three mitigating factors, namely absence of a prior disciplinary record, restitution, and remorse. Nevertheless, the ODC concluded that the aggravating factors outweigh or offset the mitigating factors. Based on this reasoning, the ODC argued that disbarment is the appropriate sanction.

Following its consideration of the matter, the hearing committee recommended a lengthy suspension from the practice of law. The ODC filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board found the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3), and that respondent 14violated the Rules of Professional Conduct as charged. The board determined respondent intentionally violated duties owed to his clients and the legal profession, resulting in significant injury to his clients. On seven occasions, respondent endorsed checks payable to his law firm, cashed them or deposited them into his personal bank account, and converted the proceeds to his own use. Although respondent subsequently made restitution to his clients, they were deprived of funds rightfully belonging to them until restitution was accomplished. The board concluded the baseline sanction for respondent’s misconduct is disbarment.

The board found the record supports a finding of the following aggravating factors: dishonest or selfish motive, pattern of misconduct, multiple offenses, and substantial experience in the practice of law. In mitigation, the board recognized the absence of a prior disciplinary record, personal or emotional problems, restitution, and remorse.

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 inappropriate. Accordingly, the board recommended that respondent be disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

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

DISCUSSION

The deemed admitted facts in this case establish that over a ten-month period, respondent converted $17,135.97 from the clients of his former law firm. Therefore, | ¡¿he sole issue presented for our consideration is the appropriate sanction for respondent’s 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).

Respondent’s conversion of client funds is clearly serious in nature. In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), we explained the typical elements which are found in a disbarment case based on conversion:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.

In the instant case, respondent’s actions plainly indicate he acted in bad faith and intended a result inconsistent with his clients’ interests. He retained for his own use more than $17,000 in funds his former law firm had received on behalf of the clients, thereby causing actual damage to the clients and to the law firm. While the funds have been repaid, this case nonetheless falls on the higher end of the Hinrichs range. Considering the ■ aggravating factors present in this case, the disciplinary board’s recommendation of disbarment is appropriate.

|J)ECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of James Scott Denhollem, Louisiana Bar Roll number 4871, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The seven checks represented cost refunds from the De Soto Parish Clerk of Court, a seizure account disbursement from the Bossier Parish Sheriff's Office, and funds paid by an insurance company in satisfaction of an intervention filed by respondent on behalf of a client.

      . Mr. Casten also observed that respondent had been treated for several years for chronic depression, and that he had stopped taking his medication in the six to nine months prior to his termination from the firm. According to Mr. Casten, respondent’s family and physicians had assured the firm "that there was no criminal intent on his part and that in fact these were actions consistent with his deep depressive state.” However, there is no medical evidence in the record to prove that respondent is affected by a mental disability or that his alleged mental disability caused the misconduct at issue.

      .The return receipt card was signed by respondent personally.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Anne T. TURISSINI.
    Nos. 2003-B-0549, 2003-B-0550, 2003-B-0551.
    Supreme Court of Louisiana.
    June 6, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This attorney disciplinary proceeding arises from three sets of formal charges involving six counts of misconduct filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Anne T. Turissini, an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS

00-DB-153

Benyhill Matter

Leona Benyhill consulted with respondent about handling a medical malpractice matter for Ms. BenyhilTs son, who was incarcerated. At respondent’s direction, Ms. Benyhill immediately forwarded her son’s medical records to respondent since the matter was scheduled on the docket of a medical review panel. Subsequently, respondent failed to communicate with Ms. Benyhill regarding the matter. Ms. Beny-hill made numerous attempts to contact respondent, but to no avail.

In January 1999, Ms. Benyhill filed a complaint with the ODC advising of respondent’s failure to communicate and failure to comply -with requests to return the medical records. While respondent submitted an answer to the complaint, she failed to comply with the ODC’s numerous requests that she supplement her response. As [¡>a result, the ODC issued a subpoena compelling respondent’s cooperation in the matter. Subsequently, respondent failed to comply with additional requests that she supplement her answer.

Dorr Matter

In May 1999, Susan Dorr retained respondent for $2,000 to institute divorce proceedings on her behalf. After a one hour initial consultation, respondent drafted a petition for divorce and injunctive relief. On June 17, 1999, respondent filed the petition in the Twenty-Second Judicial District Court for the Parish of St. Tammany. The following day, Ms. Dorr contacted respondent to advise she had reconciled with her husband and sought to withdraw her petition. Respondent contacted the clerk of court by telephone to advise of her intent to withdraw the petition, but neglected to send anything in writing. Ms. Dorr made numerous efforts to contact respondent by telephone, but was unsuccessful.

Two weeks after Ms. Dorr requested that her case be withdrawn, the petition was directed to the Covington Sheriff’s Department for service of process. Five days later, Ms. Dorr’s husband was served with the petition. On the same day, Ms. Dorr faxed a letter to respondent asking that she refund the unearned fee, which included the fees associated with the service of process. Respondent failed to respond to her client’s request. On July 20, 1999, over one month after the case had been filed and her client requested the case be withdrawn, respondent filed the motion to dismiss.

Approximately six months later, Ms. Doit filed a complaint with the ODC advising of respondent’s misconduct relative to the legal proceeding, failure to communicate and failure to account for and return the unearned fee. Respondent neglected to respond to the complaint, and the ODC issued a subpoena compelling 13her attendance at a scheduled deposition. While respondent eventually filed a response to the complaint, the ODC requested that respondent provide an accounting for the services rendered to Ms. Dorr. Respondent failed to comply with the request.

01-DB-032

Anthony Newton, Sean Williams and Alex Treadaway each filed a disciplinary complaint with the ODC alleging respondent had been retained to handle and, subsequently, abandoned their respective criminal matters. In each of the matters, respondent failed to comply with the ODC’s requests that she respond to the allegations of misconduct. The ODC issued subpoenas in connection with the Newton and Treadaway matters to compel respondent’s cooperation.

01-DB-105

In June 2000, Albert and Mary Ann Deidrich retained respondent to institute adoption proceedings on behalf of Mr. Deidrich, who sought to formally adopt his wife’s minor child. At the initial meeting, the clients gave respondent the birth certificate of the minor child and other relevant documentation. Although the Deid-richs paid respondent a $500 advance fee, respondent took no action in the matter. For over nine months, the Deidrichs made numerous efforts to communicate with respondent, but to no avail.

In June 2001, the Deidrichs filed a complaint with the ODC advising of respondent’s neglect of their legal matter and failure to return their fee. In support of their allegations, they enclosed with their complaint copies of the canceled checks relative to the retainer fee.

I ¿DISCIPLINARY PROCEEDINGS

Formal Charges

In December 2000, the ODC filed two counts of formal charges in 00-DB-153 alleging relative to the Benyhill and Dorr matters respondent violated Rules 1.3 (lack of diligence), 8.1(c) (failure to cooperate with the ODC in its investigation) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct. The charges also alleged with regard to the Benyhill matter a violation of Rule 1.16(d) (failure to protect client interests upon termination of representation) and, as to the Dorr matter, a violation of Rule 1.5(f)(6) (failure to refund unearned fees or place disputed fees in trust pending resolution).

In March 2001, the ODC filed a second set of formal charges against respondent in 01-DB-032 in connection with the Williams, Newton and Treadaway disciplinary investigations. The three counts of misconduct alleged respondent violated Rules 8.1(c) (failure to cooperate with the ODC in its investigation) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct.

In October 2001, in 01-DB-105, the ODC filed a third set of formal charges against respondent involving one count of misconduct arising out of the Deidrich matter. The charges allege violations of Rules 1.3 (lack of diligence), 1.4(a) (failure to communicate with clients) and 1.5(f)(6) (failure to refund unearned fees and place disputed funds in trust) of the Rules of Professional Conduct.

Respondent failed to respond to any of the three sets of formal charges, and the allegations therein were deemed admitted pursuant to Supreme Court Rule XIX, § 11(E)(3). Subsequently, the respective hearing committees gave the parties the |Ropportunity to file written arguments and documentary evidence on the issue of sanctions. While respondent failed to present anything for consideration in the three proceedings, the ODC submitted evidence in support of each of its cases.

Recommendations of the Hearing Committees

Relying on the deemed admitted charges, the hearing committees determined the ODC proved by clear and convincing evidence the allegations of professional misconduct. The hearing committees did not recognize the presence of any aggravating or mitigating factors, with the exception of the hearing committee considering the 01-DB-105 matter, which cited in aggravation respondent’s failure to cooperate with the ODC.

In 00-DB-153, the hearing committee recommended respondent be suspended from the practice of law for a period of one year and one day for the misconduct subject of the Benyhill and Dorr matters. In 01-DB-032, the hearing committee recommended imposition of a public reprimand relative to the Williams, Newton and Treadaway matters. Finally, in 01-DB-105, the hearing committee recommended for |fithe misconduct subject of the Deid-rich matter a six-month suspension, payment of restitution in the amount of $500 and a formal application for reinstatement to the practice of law.

Recommendation of the Disciplinary Board

The disciplinary board consolidated the three sets of formal charges. It adopted the factual findings of the hearing committees. The board found respondent negligently violated duties owed to Ms. Benyhill and Ms. Dorr, whose husband was embarrassed by the unnecessary service of the divorce petition. The board found respondent knowingly, if not intentionally, violated duties owed to the Deidrichs resulting in the neglect of their legal matter and failure to return their fee. The board determined the profession was harmed by respondent’s failure to cooperate, resulting in unjust delays and imposition of an additional burden upon the disciplinary system.

As aggravating factors, the board recognized a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1985). The board also took notice of respondent’s prior disciplinary record. The board concluded the record was absent any mitigating factors.

Based on its findings, the board proposed respondent be suspended from the practice of law for a period of three years.

|7Neither respondent nor the ODC filed an objection in this court to the recommendation of the disciplinary board.

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, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The allegations subject of the three sets of formal charges were deemed admitted. As such, the ODC has proven by clear and convincing evidence respondent neglected several legal matters, failed to communicate with clients, failed to return unearned fees or place the disputed fees in trust, failed to protect a client’s interests upon termination of the representation, and failed to cooperate with the ODC in several disciplinary investigations.

Having found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the | «seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

A review of the record indicates respondent’s misconduct was both knowing and intentional with regard to her failure to take any action in her clients’ cases, failure to account for and return unearned fees, and failure to cooperate with the ODC. She has exhibited a complete disregard for her professional responsibilities owed to her clients and the profession. Respondent has expressed no remorse for her actions in depriving her vulnerable clients of their funds for several years or jeopardizing their legal matters. She has made no genuine attempt at restitution or fee dispute resolution. Respondent’s chronic failure to cooperate with the ODC has caused undue delays and burdens on an already taxed disciplinary system. The baseline sanction for this misconduct is unquestionably a suspension.

In light of the numerous aggravating factors present, including respondent’s pri- or disciplinary record, multiple offenses and substantial experience in the practice of law, we conclude a lengthy suspension is appropriate under the facts. This sanction is consistent with jurisprudence from this court. See In re: Szuba, 01-1877 (La.10/5/01), 797 So.2d 41 (two-year suspension, subject to a one-year period of probation, imposed on an attorney with a prior disciplinary record who neglected three legal matters, failed to communicate with his clients and faded to return client property); In re: Boudreau, 00-3158 (La.1/5/01), 776 So.2d 428 (three-year suspension imposed on an attorney who neglected three legal matters, failed to communicate with his clients, failed to account for and return unearned fees, failed to repay student loans, withheld client property and failed to cooperate with ODC); In re: Powers, 99-2069 (La.9/24/99), 744 So.2d 1275 (three-year suspension imposed [9on an attorney with a prior disciplinary record for similar misconduct who neglected three clients’ legal matters, failed to communicate with the clients, failed to account for and return unearned fees and failed to cooperate with the ODC).

Accordingly, we adopt the recommendation of the disciplinary board that respondent be suspended from the practice of law for a period of three years.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that Anne T. Turissi-ni, Louisiana Bar Roll number 15060, be suspended from the practice of law for a period of three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . In some instances, the complainant is referred to in the record as "Leona Benyhill."

      . With regard to the Treadaway matter, the ODC also charged respondent with a violation of Rule 1.16(d). The hearing committee and disciplinary board found insufficient evidence of the rule violation and, thus, dismissed the charge. As to the Deidrich matter, the ODC also charged and the hearing committee found sufficient evidence that respondent violated Rules 8.1(c) and 8.4(g). The disciplinary board dismissed the charges based on an insufficiency of evidence. In dismissing the charges, we find the hearing committee and disciplinary board erred insofar as it held the ODC was required to make a "prima facie" case to support the allegations which were deemed admitted. Supreme Court Rule XIX, § 11(E)(3), the "deemed admitted rule," does not require a prima facie level of proof, as recently explained in In re: Doman, 01-3058 (La. 1/10/03), 838 So.2d 715 (“We hold that the "deemed admitted” rule must be applied as it is written ... Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted.”) We recognize the written findings and recommendations of the hearing committees and disciplinary board pre-dated this court’s opinion in Donnan, during which time there were conflicting legal positions as to whether the ODC was required to provide prima facie evidence in support of allegations that had been deemed admitted. However, despite the hearing committee and disciplinary board’s application of an erroneous burden of proof, any error in this regard is ultimately harmless relative to the imposition of sanctions. Moreover, the ODC did not object to the dismissal of the charges. As such, these allegations will not be discussed hereafter.

      . Notably, the ODC failed to submit in any of the cases evidence of respondent’s prior disciplinary record. Therefore, the committees did not consider such.

      . In June 1995, this court suspended respondent from the practice of law for one year and one day, fully deferred, subject to a two-year period of conditional probation. The misconduct stemmed from respondent’s failure to communicate with a client, failure to return the client’s property, and failure to cooperate with' the ODC in its disciplinary investigation. In re: Turissini, 95-0735 (La.6/2/95), 655 So.2d 327.


text:
    Kentrisha DAVIS, et al. v. JAZZ CASINO COMPANY, L.L.C. Kentrisha Davis, John Mierl, Phyllis Brown, Carolina Mendoza, Mark Maier, Lois Irick, and Karen Porter v. Jazz Casino Company, L.L.C.
    Nos. 2003-CC-0276, 2003-OC-1223.
    Supreme Court of Louisiana.
    June 6, 2003.
   PER CURIAM.

Following a judgment of the trial court certifying a class, relator, Jazz Casino Co., L.L.C., sought review in the court of appeal by filing an application for supervisory writs as well as a suspensive appeal. The court of appeal denied relator’s application for supervisory writs, stating:

On the showing made, we find no error in the trial court’s judgment. Furthermore, relator has a remedy on appeal.

Thereafter, a separate panel of the court of appeal dismissed relator’s appeal, finding “the issue raised in this appeal was previously addressed by this Court in a writ application.” Relator now applies to this court, seeking review of these rulings.

The court of appeal erred in holding its earlier writ denial resolved the issue presented on appeal. In Bulot v. Intracoastal Tubular Services, Inc., 02-1035 (La.6/14/02), 817 So.2d 1149, we held that once a court of appeal declines to exercise its supervisory jurisdiction by denying the writ, the court was without jurisdiction to affirm, reverse or modify the judgment of the trial court. Thus, any language in the court of appeal’s earlier writ denial purporting to find no error in the trial court’s certification ruling is without effect.

An order of certification, though interlocutory in nature, is appealable because it has the potential to cause irreparable harm. See Banks v. New York Life Insurance Company, 97-1996 (La.7/29/97), 697 So.2d 592; Brown v. New Orleans Pub. Service Inc., 490 So.2d 271 (La.1986). The court of appeal erred in dismissing relator’s appeal.

Accordingly, the writ is granted in 03-OC-1223. The judgment of the court of appeal dismissing relator’s appeal is reversed and relator’s appeal is ordered reinstated. In light of our action in 03-OC-1223, relator’s application in 03-CC-0276 is denied as moot.


text:
    STATE of Louisiana v. John Sullivan AMOS, IV.
    No. 2002-K-1547.
    Supreme Court of Louisiana.
    June 18, 2003.
   PER CURIAM.

Defendant-respondent was charged with two counts of aggravated oral sexual battery, in violation of La. R.S. 14:43.4, and found guilty on each count of oral sexual battery, in violation of La. R.S. 14:43.3, over his objection to the trial court’s list of responsive verdicts. The charges stemmed from respondent’s sexual misconduct with two 10-year-old boys in the spring and summer of 1998. Respondent was 16 years old at the time but subject to prosecution as an adult under the provisions of La.Ch.C. art. 305(B)(2), which permits the state to file a bill of information in the district court for certain offenses committed by a juvenile over the age of 15 years and which, at the time of the instant offenses, including aggravated oral sexual battery as one of the enumerated crimes. La.Ch.C. art. 305(B)(2)(i)(since repealed by 2001 La. Acts 301).

On appeal, the First Circuit reversed respondent’s convictions and sentences, finding that oral sexual battery was not a lesser included offense of aggravated oral sexual battery because the former includes the requirement that lathe victim was not the spouse of the offender while the latter, before its repeal as a separate offense and assimilation into the crimes of aggravated and forcible rape by the legislature in 2001 La. Acts 301, did not. State v. Amos, 01-2024 (La.App. 1st Cir.3/28/02), 818 So.2d 318 (unpub’d)(Carter, C.J., dissenting). See La.C.Cr.P. art. 815 (“In all cases not provided for in Article 814, the following verdicts are responsive: (1) Guilty; (2) Guilty of a lesser and included grade of the offense ...; (3) Not Guilty.”); see also State ex rel Elaire v. Blackburn, 424 So.2d 246, 248 (La.1982)(“Lesser and included grades of the charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged.... Thus, the evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense.”) (citation omitted).

We granted the state’s application to reverse the First Circuit’s decision because the trial court’s instructions correctly gave the jury the option of returning oral sexual battery as a lesser included offense of aggravated oral sexual battery under the particular circumstances of the case.

The legislature added both crimes to the Criminal Code in the same act, 1985 La. Acts 287, as follows:

§ 43.3 Oral sexual battery
A. Oral sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender either compels the other person to submit by placing the person in fear of receiving bodily harm, or where the other person has not yet 1 ¡¡attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.
§ 43.4 Aggravated oral sexual battery
A. Aggravated oral sexual battery is an oral sexual battery committed where the intentional touching of the genitals or anus of one person and the mouth or tongue of another is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following [five] circumstances:
* * * # * # *
4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

The state argues here that, especially given their common origin in a single legislative act, aggravated oral sexual battery incorporated by reference the definition of oral sexual battery in La. R.S. 14:48.3, including its “spousal exception.” Oral sexual battery would therefore constitute a lesser and included grade of the offense of aggravated oral sexual battery under all circumstances. On the other hand, respondent argued, and the court of appeal agreed, that the elements of aggravated oral sexual battery were entirely self-contained within the definition of the offense, and that the crime therefore did not include a “spousal exception.” Given this premise, the court of appeal agreed with respondent that because there were instances in which an offender could commit the offense of aggravated oral sexual battery and yet not commit the crime of oral sexual battery against his or her spouse), the latter was not a lesser and included grade of the former offense. As authority for this conclusion, the court of appeal relied on |4its previous decision in State In the Interest of Rodrigues, 532 So.2d 481 (La.App. 1st Cir.1988), which held that sexual battery, as defined in La. R.S. 14:43.1, is not a lesser included offense and responsive verdict of aggravated sexual battery, as defined in La. R.S. 14:43.2, because the former also includes a requirement that the victim was not the spouse of the offender while the latter does not.

We need not resolve the question, now entirely academic in light of the repeal of La. R.S. 14:43.4 in 2001, of whether aggravated oral sexual battery included a “spousal exception.” For present purposes, we will assume, | ¡¡arguendo, that the crime did not provide the exception. We also will assume, arguendo, that, whether denominated as an essential element of the offense or as an essential factual predicate for determining criminal responsibility, a “spousal exception” written into the definition of a criminal offense is a matter for the state to negate as part of its burden of proof beyond reasonable doubt and not for the defendant to establish affirmatively as an exculpatory fact. Nonetheless, the | fiCourt properly eliminated that exception altogether from the present case by charging jurors at the close of the case as follows:

Oral sexual battery is the intentional engaging in any of the following acts with another person when the other person has not yet attained fifteen years of age and is at least three years younger than the offender....
Aggravated oral sexual battery is an oral sexual battery committed when the intentional touching of the genitals or anus of one person and the mouth or tongue of another is deemed to be without the lawful consent of the victim because it is committed when the victim is under the age of 12 years.

The court followed that instruction with a list of responsive verdicts for the jury, the first three of which were: guilty; guilty of attempted aggravated oral sexual battery; guilty of oral sexual battery.

The trial court had read the definition of oral sexual battery in its entirety during its opening remarks to the jurors, and it is not clear from the trial record when, and under what circumstances, the court determined to conform the definition of the crimes of aggravated oral sexual battery and oral sexual battery to the particular circumstances of the acts charged against respondent. However, |7it is clear that the “spousal exception” had absolutely no application to the present circumstances involving sexual misconduct by a juvenile male with two male children. The acts charged against respondent in the present case, and for which the jury convicted him, that he forced the mouths of the 10-year-old boys onto his exposed penis, have not been lawful in this state under any circumstances for over a century. See La. R.S. 14:89(A)(l)(“Crime against nature is ... [t]he unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal.... ”); State v. Baxley, 94-2982, p. 11, n. 18 (La.5/22/95), 656 So.2d 973, 980 (“Crime against nature has been punished as an offense in Louisiana since 1805.... The statute was amended in 1896 to specifically include crime against nature committed ‘with the mouth’.... ”).

Although the legislature wrote a “spousal exception” into the crime of oral sexual battery, thereby giving the statute a narrower application than the offense of crime against nature, the exception did not apply to the present case because there existed no set of circumstances, given the nature of the acts charged and the sex of both the offender and his victims, in which the state had to negate the spousal exception to establish the unlawfulness of respondent’s acts, or in which the defense could show that respondent fell within the exception as an|R exculpatory fact relieving him of criminal responsibility for those acts. See La.C.C. art. 86 (“Marriage is a legal relationship between a man and a woman that is created by civil contract.”); La.C.C. art. 89 (“Persons of the same sex may not contract marriage with each other.”). The trial court therefore properly eliminated the “spousal exception” from its general charge on the crime oral sexual battery because it was not the law applicable to either the charged crime or any of its responsive verdicts. La.C.Cr.P. arts. 803 (“When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty ... the court shall charge the jury as to the law applicable to each offense.”). The court also correctly charged jurors that oral sexual battery was a responsive verdict to the charged crime of aggravated oral sexual battery because a rational trier of fact could not find that the 16-year-old respondent had committed the charged acts by pushing the mouth of each 10-year-old boy onto his exposed penis, and yet not find that he had also committed the offense of oral sexual battery involving male children under the age of 15 years when three years or more separated the ages of victim and offender. Crimes which constitute responsive verdicts under one set of circumstances may not constitute proper responsive verdicts under another set of circumstances. See La.C.Cr.P. art. 814(C)(providing the trial court with the authority to exclude one or more statutory responsive verdicts “if, after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense.”).

The First Circuit’s decision is therefore reversed, and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermit-ted on original appeal.

      . We note that the Louisiana Judicial College shares the First Circuit’s view that La. R.S. 14:43.4 did not encompass a "spousal exception.” See 1 Louisiana Judges’ Criminal Bench Book, § 10.39, Cmt. ("In enacting the offense [of aggravated oral sexual battery], the Legislature did not provide a 'spousal exception.' The state may charge the crime even though the victim was the spouse of the defendant.”). However, the College’s list of responsive verdicts for the offense includes oral sexual battery. Id.

      . The First Circuit's decision Rodrigues is not before us and we express no opinion as to the correctness of its holding. However, we note that Rodrigues addressed an entirely different situation involving two statutes passed years apart in which the legislative intent with regard to the "spousal exception” was far more readily determined. The legislature enacted La. R.S. 14:43.1 in 1978, La. Acts 239, defining the offense of sexual battery as "the intentional engaging in any of the following acts with another person, who is not the spouse of the offender...." The legislature then added the crime of aggravated sexual batteiy to the Criminal Code in 1983 La. Acts 78, defining the offense not in terms of a sexual battery committed under certain enumerated aggravating circumstances, but as "[t]he intentional engaging in any of the following acts with another person, who is not the spouse of the offender, when the offender intentionally inflicts serious bodily harm on the victim (emphasis added). As originally enacted, aggravated sexual battery thus included a "spousal exception.” However, in the following year, the legislature amended the statute "to delete the provision exempting the spouse of the victim from criminal responsibility for such acts....” 1984 La. Acts 568. The amendment clearly supports the First Circuit's finding in Rodrigues that aggravated sexual battery did not contain a "spousal exception” while sexual battery continues to provide the exception.
      The 1984 amendment of the aggravated sexual battery statute supports a reasonable inference that a year later, when it enacted the crimes of aggravated oral sexual battery and oral sexual battery, the legislature sought a parallel construction with its sexual battery statutes: that the crime of aggravated oral sexual battery would not contain a "spousal exception” while the crime of oral sexual batteiy would provide the exception. However, the legislature modeled the provisions of the aggravated oral sexual batteiy statute after the extant aggravated rape statute in La. R.S. 14:42, as to which the "spousal exception” applied, as it had for nearly two centuries, and would continue to apply until 1990. The legislative history of Senate Bill 392 which became 1985 La. Acts 287 provides no guidance on this question and the legislative intent with respect to providing a "spousal exception” for the crime of aggravated oral sexual battery is therefore not as readily determined as it is with respect to aggravated sexual battery. In a somewhat perverse result for respondent in the present case, application of the rule of lenity would favor reading a "spousal exception” into the aggravated oral sexual battery statute to give the crime its narrowest application. State v. Ritchie, 590 So.2d 1139, 1149, n. 6 (La.1991)(principle of lenity "directs that a court construe a criminal statute in favor of the most narrow application when there are serious doubts concerning a meaning of a term.”).

      . For over two centuries, until the legislature amended the definition of rape in La. R.S. 14:41, this state had recognized the "spousal exception" in the most serious of sexual crimes, i.e., rape. See, e.g., State v. Haines, 51 La. Ann. 731, 25 So. 372 (1899)("[T]he husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract.”). The exception dates back to the common law under which the existence of a matrimonial relationship marked the dividing line between the lawful and unlawful carnal knowledge of a woman. See Rollin M. Perkins, Criminal Law, Ch. 2, § 5, p. 156 (1969)("An essential part of the common-law definition of rape is unlawful carnal knowledge’ and so forth, and this is an implied part of every definition of the crime even if not expressed .... the true reason why the husband, who has sexual intercourse with his wife against her will, is not guilty of rape is that such intercourse is not unlawful.”) (footnote omitted); see also State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541, 555 (1955)("The essential elements of the common law crime of rape are unlawful carnal knowledge of a woman, not his wife, by a male with force and against her will; and each of these elements must be present in order to constitute that offense.”)(citing Burdick, The Law of Crime, Volume 2, Section 475).
      This Court had never directly addressed the question of whether the "spousal exception" was an essential element of the offense of rape that the state had to prove by negative implication, before 1990 La. Acts 722 amended the definition of rape in La. R.S. 14:41 and eliminated the exception altogether, or whether it constituted an exception, excuse, or proviso which ordinarily "must be urged by way of defense.” La.C.Cr.P. art. 476. Other states have treated the exception as a matter for the defendant to establish. See, e.g., Rogers v. State, 267 Ind. 654, 373 N.E.2d 125, 127 (1978)("The defendant cites no Indiana cases and we find none in which it is stated that the prosecution is required to prove as an essential element of the offense of rape that the defendant is not the husband of the victim.... As to a defense, a defendant is generally required to put the defense in issue by some means himself, as, for example, by introducing evidence or by specially pleading.”) (citations omitted); State v. Bell, 90 N.M. 134, 560 P.2d 925, 933 (1977)("Even without this authority for the general proposition that it is not incumbent upon the prosecution in a criminal case to prove a negative status created by statutory exclusion, there is authority for the specific proposition that it is not incumbent upon the prosecution in a rape trial to allege or prove that the prosecutrix was not the wife of the accused.”). However, in State v. La Borde, 234 La. 28, 99 So.2d 11, 13 (1958), this Court indicated that the status of victim as an unmarried female for purposes of La. R.S. 14:80, defining the crime of carnal knowledge of a juvenile, "is not a negative fact; it is a positive one for which affirmative proof must be adduced.” Arguably, any fact which marks the dividing line between lawful and unlawful conduct, and whether it is denominated as an essential element of the offense or as an essential prerequisite for imposing criminal responsibility, must be submitted to the fact finder and proved (affirmatively or by exclusion) beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the maximum penalty for the crime must be charged in an indictment submitted to a jury, and proven beyond a reasonable doubt.").

      . The record indicates that after a charge conference with the court and the state, defense counsel expressed only a single objection to the court’s proposed jury instructions. Counsel objected to the list of responsive verdicts on grounds that if respondent "were convicted of any ... of the lesser possible verdicts in the charges, that would have been handled in juvenile court.” The trial court overruled the objection on the basis of La. Ch.C. art. 305(D), which provides that "[t]he court exercising criminal jurisdiction shall retain jurisdiction over the child’s case, even though he pleads guilty to or is convicted of a lesser included offense. A plea to or conviction of a lesser included offense shall not revest jurisdiction in the court exercising juvenile jurisdiction over such a child.” The court thus found "that the responsive verdicts are appropriate to the charge, because it does give the jury an option under the law to come back with a lesser offense.”
      Respondent first raised his present objection to the court's list of responsive verdicts in his post-verdict motions for a new trial and in arrest of judgment filed one month after the verdict. Ordinarily, "[a] party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error." La.C.Cr.P. art. 801(C). In addition, “[t]he nature of the objection and grounds therefor shall be stated at the time of objection.” Id. However, at no time in the present case has the state asserted that respondent's failure to pose a timely objection to the trial court's instructions on the grounds he now asserts precluded the complaint on appeal. Similarly, the trial court did not default the claim procedurally at the hearing conducted on the motion for a new trial and in arrest of judgment but considered it on the merits and rejected it. Under these circumstances, arguably, the state has waived any entitlement it had to a procedural default of respondent’s claim. See Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 480, 139 L.Ed.2d 444 (1997)("A court of appeals is not 'required' to raise the issue of procedural default sua sponte."); Rosario v. United States, 164 F.3d 729, 732 (2nd Cir.1998)("Having failed to raise the issue before [the district court judge] or in its briefs to this Court, the government ... has forfeited or waived the argument [that defendants procedurally defaulted their claim.]”).


text:
    In re Robert B. KEATY.
    No. 2003-B-0911.
    Supreme Court of Louisiana.
    June 20, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, Robert B. Keaty, a disbarred attorney. For his misconduct, respondent proposed that he be permanently disbarred from the practice of law. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

UNDERLYING FACTS

While living in the Nashville, Tennessee area, respondent began doing business as Tennessee Associates, working exclusively for Kenny Pipe and Supply and performing debt collection work on its behalf. During the course of these efforts, respondent billed Kenny Pipe and Supply approximately $46,000, of which approximately $40,000 was not due. Furthermore, respondent opened bank accounts in the names of his wife and children without their knowledge and signed their names to checks to improperly secure access to funds.

I ^DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

The ODC conducted an investigation into the complaint filed against respondent. Prior to the institution of formal charges, respondent filed a petition for consent discipline, admitting his conduct violated Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Louisiana Rules of Professional Conduct. For his misconduct, respondent proposed that he be permanently disbarred. The ODC concurred in respondent’s petition.

Disciplinary Board Recommendation

The disciplinary board found that respondent intentionally violated a duty owed to the public, causing damage. The board concluded the baseline sanction for this misconduct is disbarment.

Based upon its review of the record, the board determined the following aggravating factors are present: prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 1974). The sole mitigating factor present is a cooperative attitude toward the disciplinary proceedings. The board noted that respondent’s conduct meets Guideline 9 of the permanent disbarment guidelines set forth in Appendix E to the Rules of Lawyer Disciplinary Enforcement, and concluded that the “most onerous form of lawyer discipline in Louisiana” is warranted in this |3case. Accordingly, the board recommended the petition for consent discipline be accepted.

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).

The parties submit respondent’s conduct in this case warrants permanent disbarment. We agree.

The guidelines for permanent disbarment are set forth in Appendix E to Supreme Court Rule XIX. As the preamble to this appendix explains, the guidelines were not intended to bind this court in its decisionmaking, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.”

Guideline 9 of Appendix E provides that permanent disbarment may be warranted for instances of serious attorney misconduct which are “preceded by suspension or disbarment for prior instances of serious attorney misconduct.” The term “serious attorney misconduct” is defined as “any misconduct which results in a suspension of more than one year.” Respondent’s actions in the instant proceeding | unquestionably constitute serious attorney misconduct, and were preceded by prior instances of conduct which we deemed worthy of disbarment.

Accordingly, we will accept the petition for consent discipline. Pursuant to that petition, we will permanently disbar respondent from the practice of law in Louisiana.

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 Robert B. Keaty be permanently disbarred. Pursuant to Supreme Court Rule XIX, § 24(A), he shall be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent was disbarred in 2000 for misconduct involving the commingling and conversion of more than $10 million in client funds. In re: Keaty, 00-1982 (La.9/29/00), 769 So.2d 1175.

      . Guideline 9 provide in pertinent part as follows:
      GUIDELINE 9. Instances of serious attorney misconduct ... preceded by suspension or disbarment for prior instances of serious attorney misconduct.... Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.


text:
    In re Jacqueline PHILLIPS.
    No. 2003-B-1354.
    Supreme Court of Louisiana.
    June 20, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This proceeding arises from a petition for consent discipline filed by respondent, Jacqueline Phillips, an attorney licensed to practice law in the State of Louisiana, but currently on interim suspension. For her misconduct in various pending disciplinary matters, respondent proposed that she be disbarred. The Office of Disciplinary Counsel (“ODC”) concurred in the petition, and the disciplinary board recommended the proposed discipline be accepted.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In July 1999, the ODC filed seventeen counts of formal charges against respondent arising out of twelve complaints of ethical misconduct. The formal charges generally alleged that respondent neglected legal matters, faded to communicate with her clients, failed to account for and return unearned legal fees, failed to properly safeguard client property, and failed to cooperate with the ODC in its investigation. Following a formal hearing in that proceeding (numbered 99-DB-062), the hearing committee recommended that respondent be suspended from the practice of law for three years.

While the matter was pending in the disciplinary board, respondent and the ODC filed in this court a joint motion for interim suspension stemming from the charges subject of the 99-DB-062 matter, as well as two additional sets of formal | ?charges that had been filed against respondent in August 2000 (00-DB-107) and April 2001 (01-DB-043). We granted the motion on October 24, 2001. In re: Phillips, 01-2678 (La.10/24/01), 799 So.2d 1134.

One week later, on November 2, 2001, the disciplinary board filed its report in 99-DB-062, recommending that respondent be suspended from the practice of law for three years, with all but one year deferred, followed by a two-year period of supervised probation. The ODC filed an objection in this court to the leniency of the sanction recommended by the board, and the matter was set on the court’s April 2002 docket for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b). However, prior to hearing argument, we remanded the matter to the disciplinary board for consolidation with the other pending disciplinary matters involving respondent. The board was instructed to issue “a single recommendation to this Court” encompassing all such matters. In re: Phillips, 01-2948 (La.3/27/02).

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

Following remand, respondent filed a petition for consent discipline. The petition addressed all three sets of formal charges filed by the ODC, as well as the allegations of misconduct in four of the ODC’s open investigatory files. For her misconduct, respondent proposed that she be disbarred from the practice of law. The ODC concurred in the petition.

| ^Disciplinary Board Recommendation

The disciplinary board found that respondent’s misconduct was negligent in part, knowing in part, and intentional in part, and that she breached duties owed to her clients, the legal system, the public, and the profession. As a result of respondent’s misconduct, her clients’ legal matters have been delayed and jeopardized. The profession has also been harmed by respondent’s failure to cooperate. An attorney’s failure to cooperate in a disciplinary investigation unjustly delays and imposes an additional burden upon the disciplinary system. Additionally, respondent’s failure to safeguard third-party funds and to return unearned fees to her clients has resulted in the actual loss of money to her clients and to a third-party medical provider.

Based upon its review of the record, the board determined the following aggravating factors are present: pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1986). The board found the following mitigating factors are present: absence of a prior disciplinary record and personal or emotional problems.

After considering the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence of this court dealing with misconduct similar to respondent’s, the board concluded that disbarment is the appropriate sanction in this case. Accordingly, the board recommended the petition for consent discipline be accepted.

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 14to 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 has admitted to numerous instances of serious professional misconduct, including neglect of legal matters, failure to communicate with clients, failure to account for or return unearned legal fees, and failure to cooperate with the ODC in its investigation. This alarming pattern of misconduct — which appears to have occurred over a period of at least six years — clearly caused actual harm to respondent’s clients, the public, the legal sys-tern, and the profession. While some mitigating factors may be present, then-weight is clearly insufficient to warrant the imposition of a sanction less than disbarment.

Accordingly, we will accept the petition for consent discipline and order that respondent be disbarred from the practice of law.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that the name of Jacqueline Phillips, Louisiana Bar Roll number 17347, be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. Respondent is ordered to make restitution to her former clients and to third parties. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule[sXIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . All three sets of formal charges involve substantially similar allegations of misconduct. The proceeding numbered 00-DB-107 encompasses five counts of formal charges, and 01-DB-043 encompasses two counts of formal charges. Furthermore, the ODC was still investigating complaints against respondent, and had open investigative files numbered 13129, 13335, 13392, and 14662.

      . The board noted the conduct at issue in these matters arose after respondent entered private practice as a solo practitioner. Shortly thereafter, respondent became pregnant and attempted to balance the demands associated with maintaining her private practice and fulfilling her obligations as a single parent.


text:
    In re Aylmer M. WYCHE, III.
    No. 2002-B-2800.
    Supreme Court of Louisiana.
    June 20, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from six counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Aylmer M. Wyche, III, a currently suspended attorney.

FORMAL CHARGES

Counts I and II — The Todd Matter

Fred Todd retained respondent to make revisions to his will, the original of which he gave to respondent. Thereafter, Mr. Todd and his wife, Irma, repeatedly called respondent’s office for an update on the matter, but he failed to return the calls. Following Mr. Todd’s death of cancer, Mrs. Todd made several requests to respondent for the return of the original will, but he failed to comply with these requests. Mrs. Todd subsequently filed a complaint against respondent with the ODC.

On September 29, 1999, October 15, 1999, and again on October 25, 1999, the ODC forwarded a copy of the complaint to respondent by certified and regular U.S. mail. Respondent faded to reply to the complaint. The ODC thereafter served 12respondent with a subpoena compelling him to appear and answer the complaint under oath.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the 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), 1.16(d) (termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Counts III and IV — The Fletcher Matter

In May 1998, Doris Fletcher paid respondent $500 to handle the succession of her husband, Clarence Dale Fletcher. At the time he was retained, respondent was suspended from the practice of law in Wyche I, but he nevertheless failed to advise his client of this fact; indeed, respondent suggested to Mrs. Fletcher that the succession would be completed within ten days. Respondent eventually informed Mrs. Fletcher that he had filed the succession pleadings, and in August 1998, he provided her with a judgment of possession which was allegedly rendered in the matter entitled Succession of Clarence Dale Fletcher, No. 11,732 on the docket of the 26th Judicial District Court for the Parish of Bossier. In fact, however, respondent had not filed the succession pleadings, and he had fabricated the judgment of possession. Attorney Donald Wilson completed the Fletcher succession and was paid $500 by respondent |sfor his work in the case. Mrs. Fletcher subsequently filed a complaint against respondent with the ODC.

On October 28, 1999, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear on March 23, 2000 with his entire file in the Fletcher matter. Respondent appeared and gave a sworn statement, but he did not produce his file.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.1 (failure to provide competent representation to a client), 1.3, 1.4, 1.5 (fee arrangements), 5.5 (engaging in the unauthorized practice of law), 8.1(c), 8.4(a), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d), and 8.4(g).

Counts V and VI — The Malone Matter

In June 1996, Geneva and Jerry Malone retained respondent to handle the succession of Alvin Marion Malone. Respondent neglected the matter and failed to communicate with his clients. Thereafter, respondent’s suspension from the practice of law in Wyche I became final on October 4, 1996, but he failed to advise his clients of this fact. Respondent eventually informed his clients that he had filed the succession pleadings, and in August 1998, he provided Mr. Malone with a judgment of possession which was allegedly rendered in the matter entitled Succession of Alvin Marion Malone, No. 11,798 on the docket of the 26th Judicial District Court for the Parish of Bossier. In fact, however, respondent had not filed the succession |4pleadings, and he had fabricated the judgment of possession. The Malones subsequently retained new counsel, Samuel Caverlee, to complete the matter, and in turn, Mr. Cav-erlee filed a complaint against respondent with the ODC.

On April 3, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear on November 28, 2000 with his entire file in the Malone matter. Respondent appeared and gave a sworn statement, but he did not produce his file.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 5.5, 8.1(c), 8.4(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(g).

DISCIPLINARY PROCEEDINGS

On April 12, 2001, the ODC filed six counts of formal charges against respondent. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

In its submission, the ODC argued that respondent’s conduct was intentional and caused injury to his clients, the legal system, the profession, and the disciplinary system. The ODC also argued that under the ABA’s Standards for Imposing Lawyer | Sanctions, disbarment is the baseline sanction for respondent’s misconduct. The ODC suggested several aggravating factors are present in this case, including respondent’s prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law (admitted 1971). The ODC identified no mitigating factors. Concluding there is no reason to deviate downward from the baseline sanction, the ODC recommended respondent be disbarred.

Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

After reviewing the record, the hearing committee concluded that respondent committed the substantive misconduct charged in the formal charges. In aggravation, the committee considered respondent’s prior disciplinary record for misconduct similar to that at issue here, and particularly the fact that respondent violated two prior orders of suspension by engaging in the practice of law and failing to disclose his suspension to his existing clients. The committee felt that respondent’s most egregious conduct involved his attempts to mislead his clients in the two succession matters by fabricating judgments of possession, supplying erroneous case numbers on prepared judgments, and fabricating official court seals and judges’ signatures on the documents. The committee concluded that respondent’s “pattern of neglect of his duties as a lawyer which caused harm to his clients, failure to respond to the proper | (¡inquiries of the Office of Disciplinary Counsel, failure to respect the prior discipline issued by the Disciplinary System and the Supreme Court demonstrates an utter disregard or contempt for the legal profession which should preclude Respondent from the practice of law.” Based on this reasoning, the committee recommended that respondent be disbarred.

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

Disciplinary Board Recommendation

The disciplinary board agreed that re-_ spondent committed the substantive misconduct charged in the formal charges. The board found respondent’s misconduct was knowing and intentional, and that he violated duties owed to his clients, the legal system, and the legal profession. The legal matters of Mrs. Todd, Mrs. Fletcher, and Mrs. Malone were unnecessarily delayed by respondent’s fraudulent representations, lack of diligence, and failure to communicate. In addition, respondent fraudulently accepted legal fees from Mrs. Fletcher with the full knowledge that he was suspended from the practice of law. The legal profession was harmed by respondent’s unauthorized practice of law during the period of his suspension. Restrictions on the practice of law are designed to protect the public, protect the integrity of the judicial system, and provide a means of regulation of the legal profession. Respondent’s failure to recognize these restrictions created the potential for injury to the public, the legal system, and the legal profession. The legal profession was further harmed by respondent’s failure to cooperate in the disciplinary investigation of the complaints filed against him. An attorney’s failure to cooperate in |7a disciplinary investigation unjustly delays and imposes an additional burden upon the disciplinary system.

In aggravation, the board recognized respondent’s prior disciplinary record, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process, vulnerability of the victims, and substantial experience in the practice of law. The board found the record does not support any mitigating factors. Considering the weight of the aggravating factors present, the board recommended respondent be disbarred. The board further recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Although neither respondent nor the ODC objected to the disciplinary board’s recommendation, this court, on its own motion, ordered briefing pursuant to Supreme Court Rule XIX, § 11(G)(1)(a). The March 18, 2003 order directed the parties “to address whether the sanction of permanent disbarment pursuant to Supreme Court Rule XIX, §§ 10(a) and 24, as amended August 1, 2001, is appropriate under the facts of this case.” The ODC timely filed its brief in response to the order, urging that permanent disbarment be imposed. Respondent filed nothing for the court’s consideration.

DISCUSSION

The deemed admitted facts in this case support a finding of professional misconduct that is unquestionably serious in nature. Respondent engaged in the unauthorized practice of law after being disciplined by this court, and in fact, did so on more than one occasion and in more than one client matter. Furthermore, | ^respondent fabricated court pleadings in two cases in an apparent attempt to conceal from his clients the fact that he had been suspended from the practice of law. No less serious is respondent’s neglect of his clients’ legal matters, failure to communicate with his clients, and failure to cooperate with the ODC in its investigation. There are no mitigating factors present; however, numerous aggravating factors exist. Under these circumstances, we conclude the baseline sanction is disbarment. However, given the egregiousness of respondent’s misconduct, we will further consider whether permanent disbarment is warranted, as set forth in the 2001 amendments to Supreme Court Rule XIX, § 10 and § 24.

In Appendix E to the Rules of Lawyer Disciplinary Enforcement, we have set forth several guidelines illustrating the types of cases which might warrant permanent disbarment. These guidelines were not intended to bind this court in its deci-sionmaking, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.” Respondent’s conduct in the matters at issue falls squarely within three of the permanent disbarment guidelines, namely Guideline 2 (“intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury”), Guideline 8 (“following notice, engaging in the unauthorized practice of law ... during the period of time in which the lawyer is suspended from the practice of law or disbarred”), and Guideline 9 (“instances of serious attorney misconduct ... when the misconduct ... is preceded by suspension or disbarment for prior instances of serious attorney misconduct. ... Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.”).

|aWe do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent engaged in conduct that was actively intended to frustrate the administration of justice. This court cannot and will not tolerate such conduct by an attorney. Respondent’s actions convincingly demonstrate he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Aylmer M. Wyche, III, Louisiana Bar Roll number 13720, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . On September 20, 1996, respondent was suspended for a period of two years, with all but ninety days deferred, for misconduct which occurred between 1987 and 1992. In re: Wyche, 96-1033 (La.9/20/96), 679 So.2d 1335 ("Wyche I ”). Respondent did not apply to this court for reinstatement after serving the active portion of the suspension, and accordingly, he remained suspended from the practice of law. On March 31, 2000, this court suspended respondent for three years for misconduct including engaging in the unauthorized practice of law in February 1998. In re: Wyche, 00-0029 (La.3/31/00), 756 So.2d 311 ("Wyche II”).

      . The case that was actually assigned the docket number listed by respondent in the Fletcher "judgment of possession” was entitled Succession of Zelma Jean Johnson. That matter was handled by Shreveport attorney William Robert McKenzie, with whom respondent has no connection.

      . The case that was actually assigned the docket number listed by respondent in the Malone "judgment of possession” was entitled the Succession of Leo Elie Martin, II. That matter was handled by the Benton, Louisiana law firm of Wallace and Sutherland, with which respondent has no connection.

      . In addition to the suspensions previously discussed, respondent was admonished in 1997 for failing to cooperate in the ODC's investigation of a complaint filed against him (97-ADB-025). He was also admonished in 1993 for misconduct arising out of his neglect of a domestic relations matter (93-ADB-054).

      . In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La. 1991), we observed that it is generally inappropriate to discipline an attorney a second time for misconduct that occurred before or concurrently with the misconduct at issue in the attorney’s first disciplinary proceeding. Although the substantive misconduct at issue here occurred in the 1996-1998 time frame, the same general time frame as the unauthorized practice of law in Wyche II, respondent's refusal to cooperate in the investigation of the instant complaints hindered the ODC from investigating and developing the facts necessary to bring these formal charges at the same time as the formal charges in Wyche II. Under such circumstances, we decline to employ the Chatelain approach.


author: h CALOGERO, Chief Justice ¶WEIMER, J.,

text:
    STATE of Louisiana v. Stephret HARVEY.
    No. 2003-KK-1118.
    Supreme Court of Louisiana.
    June 20, 2003.
    CALOGERO, C.J., concurs in denial and assigns reasons.
    JOHNSON, J., to grant for Justice WEIMERS reasons assigned.
    WEIMER, J., would grant the writ and assigns reasons.
   h CALOGERO, Chief Justice

concurs in the denial of the writ application:

Here, as in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the trial judge denied the motion to quash and has a great deal of discretion in that regard. The facts of this case are, in some respects, stronger for the defendant-i.e., the district attorney twice entered nolle grosses when the trial judge denied his motion for continuance then reinstituted charges, the motions for continuance were not based on valid reasons, and the defendant has been incarcerated since his arrest. However, the defendant cannot jump the first hurdle of the test established by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for showing that his right to a speedy trial has been violated since only eleven months passed between the filing of the bill of information and the filing of the motion to quash, and that period of time is insufficient to show a presumptively prejudicial delay. Since the defendant cannot establish the first Barker factor, the other factors should not be considered. Accordingly, the trial court did not abuse his discretion in denying the defendant’s motion to quash.

¶WEIMER, J.,

dissenting from the denial of the writ application.

When this matter was originally set for trial, the State made an oral motion for continuance, which the trial court denied. The State then entered a nolle prosequi of the first bill of information. Subsequently, the State filed a second bill of information for the same offenses. Thereafter, the trial court set the matter for trial. On the day of trial, the State orally moved for a continuance that was denied. The State then entered another nolle prosequi of the second bill of information. Thereafter, the State filed ■ a third bill of information. When this matter was set for trial a third time, the defense filed a motion to quash the third bill based on a violation of the defendant’s right to a speedy trial.

In the trial transcript, the trial judge states that the State never gave a reason for its delay in bringing the defendant to trial. The trial judge indicated “the delays were based on just the negligence of [the prosecutor’s] predecessors in not knowing what was on the docket on any given day and for some reason not being able to put this case in a position to go to trial.” The trial judge also concluded that in his opinion there were lengthy delays in this case.

Not once, but twice, the State entered nolle prosequi after being denied oral motions for continuances on the day of trial. For the reasons assigned in my dissent Lin State v. Love, 2000-3347, (La.5/23/03), 847 So.2d 1198, I would grant this writ for the purpose of further evaluation of the facts and applicable law.