author: hPER CURIAM.

text:
    In re Audwin L. JACKSON.
    No. 2002-B-3062.
    Supreme Court of Louisiana.
    April 9, 2003.

      Charles B. Plattsmier, G. Fred Ours, Baton Rouge, for Applicant.
    James R. Clary, Jr., Audwin L. Jackson, Baton Rouge, for Applicant.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This attorney disciplinary proceeding arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Audwin L. Jackson, an attorney licensed to practice law in the State of Louisiana but currently suspended.

UNDERLYING FACTS

In 1995, this court suspended respondent from the practice of law for a period of two years. In re: Jackson, 94-2261 (La.9/15/95), 660 So.2d 838. Upon completion of the suspension, respondent filed a petition for reinstatement pursuant to Supreme Court Rule XIX, § 24. This court transferred the matter to the disciplinary board for its consideration. In re: Jackson, 98-1280 (La.6/19/98), 719 So.2d 482.

While the petition for reinstatement was pending, respondent worked as a paralegal for attorney Lindsey J. Scott. In February 2000, Mr. Scott became ill and asked respondent to sit in for him during the deposition of his client, Reginald Lewis. At the deposition, respondent was listed as appearing for Mr. Lewis. At no time during the course of the deposition did respondent indicate he was not licensed to practice. However, he did not ask any questions during this deposition.

|2One month later, in March 2000, respondent, while working as a paralegal for attorney Edselle K. Cunningham, volunteered to sit in the deposition of Mr. Cunningham’s client Priscilla Jarrell. At this deposition, respondent is listed as appearing on behalf of Ms. Jarrell in his capacity as “attorney at law.” At no time during the deposition did respondent indicate he was currently suspended from practice. Unlike the earlier deposition, respondent asked several questions of the deponent.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed two counts of formal charges against respondent based on the Lewis and Jarrell matters, respectively. Both counts alleged respondent violated Rules 5.5(a) (engaging in the unauthorized practice of law), 8.4(a) (violating the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent filed an answer to the formal charges denying any misconduct on his part.

In lieu of a formal hearing in the matter, the parties entered into a joint stipulation of facts and submitted the matter on documentary evidence. The parties recognized multiple offenses and respondent’s prior disciplinary record as aggravating factors. In mitigation, they noted absence of dishonest or selfish motive, full and free disclosure and cooperation in the disciplinary process, imposition of other penalties or sanctions (i.e., withdrawal of petition for reinstatement), and remorse.

| aRecommendation of the Hearing Committee

The hearing committee concluded respondent engaged in the unauthorized practice of law, in violation of Rules 5.5 and 8.4. The committee found respondent’s conduct was knowing, resulting in potential injury to the deponents, the public and the legal system. Relying on Standard 7.2 of the ABA’s Standards for Imposing Laivyer Sanctions, the committee recommended respondent be suspended from the practice of law for a period of 180 days. It further proposed the suspension run consecutive to the one-year period of delay required before respondent could seek reinstatement.

Recommendation of the Disciplinary Board

The disciplinary board concurred in the findings of fact of the hearing committee. In addressing the issue of sanctions, the board found respondent violated duties owed to the clients of opposing counsel subject of the depositions, the legal system and to the profession. It concluded his conduct was knowing, resulting in actual injury in that the depositions taken were faulty and could affect their use in subsequent legal proceedings.

The board accepted the ABA Standard and aggravating and mitigating factors cited by the hearing committee. While it adopted the committee’s proposed sanction of a 180-day suspension, it proposed the period of suspension be fully deferred. In support of the deferral, the board noted almost two years had passed since respondent | ¿withdrew his petition for reinstatement, during which time respondent has remained suspended from practice.

One board member dissented as to the leniency of the proposed sanction, finding respondent’s actions to be a “mockery of the disciplinary process.”

The ODC filed an objection to the leniency of the board’s proposed sanction. Based on such, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

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 evidence in the record demonstrates respondent engaged in the unauthorized practice of law in both the Lewis and Jarrell matters. In both matters, respondent implied he was authorized to practice law, and at no time informed the court reporter or the opposing counsel that he was suspended from practice. Moreover, in the Jarrell matter, respondent acted as an attorney by asking questions of the person being deposed.

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

The unauthorized practice of law by a suspended or disbarred attorney is very serious misconduct. Our legislature has made it a felony to engage in such conduct. La. R.S. 37:213. Likewise, we have listed the unauthorized practice of law by a suspended or disbarred attorney as a possible ground for permanent disbarment under the Guidelines Depicting Conduct Which Might Warrant Permanent Disbarment contained in Appendix E to Supreme Court Rule XIX.

In general, when the attorney has manifested a conscious intent to flout the authority of this court by practicing after being prohibited from doing so, we have not hesitated to impose disbarment. See, e.g., In re: Jones, 99-1036 (La.10/19/99), 747 So.2d 1081 (attorney disbarred for engaging in the unauthorized practice of law on four occasions, after being suspended in the past for similar misconduct). However, not all instances of the unauthorized practice of law warrant the most severe sanction. For example, in In re: Ellis, 99-2483 (La.9/15/99), 742 So.2d 869, we imposed a |fininety-day suspension on a previously suspended attorney who failed to remove the “attorney at law” designation from his office. See also In re: Withers, 99-2951 (La.11/19/99), 747 So.2d 514 (attorney suspended for six months, followed by an eighteen-month period of probation, for representing a client while ineligible to do so).

The instant case falls somewhere between those two extremes. There is no indication from the record that respondent consciously attempted to practice law in blatant disregard of the orders of the court; on the other hand, it appears respondent’s actions were more deliberate and far-reaching than the actions of the respondent in Ellis.

Under these circumstances, we find the appropriate baseline sanction is a two-year period of suspension. However, in light of the mitigating factors, particularly respondent’s lack of a selfish motive, we will defer all but one year and one day of the suspension, subject to the provision that if and when respondent applies for and is granted reinstatement, he be placed on supervised probation for a period of one year.

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 Audwin L. Jackson be suspended from the practice of law for a period of two years. It is further ordered that all but one year and one day of this suspension shall be deferred. If and when respondent applies for and is granted reinstatement to the practice of law, he shall be placed on supervised probation for a period of one year. Any misconduct during that time will be grounds for making the deferred portion of the suspension ex-ecutory. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal |7interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . These charges stemmed from respondent's conviction of two counts of knowingly making false official statements and two counts of wrongfully using controlled dangerous substances in violation of the Uniform Code of Militaiy Justice. At the time of the misconduct, respondent was serving on active duty as an attorney in the United States Navy Reserve.

      . Standard 7.2 provides suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . Respondent had previously filed an application for reinstatement, but withdrew the application in July 2000. Under Supreme Court Rule XIX, § 24(1), respondent could not have filed a new application until one year had passed. However, that delay had already expired at the time the hearing committee rendered its report in September 2001. As a result, the committee essentially recommended a retroactive period of suspension.

      . Guideline 8 of Appendix E provides:
      Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.


source: Caselaw Access Project

author: | .PER CURIAM.

license: Public Domain

text:
    In re Peter Ralph BRIGANDI.
    No. 2002-B-2873.
    Supreme Court of Louisiana.
    April 9, 2003.

      Charles B. Plattsmier, G. Fred Ours, Baton Rouge, for Applicant.
    Peter R. Brigandi, Jr., Gretna, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

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

UNDERLYING FACTS

Count I — Egana Matter

In October, 1998, Shirley Egana retained respondent for $3,000 to represent her son, Denaud Manscel Egana, in connection with a criminal matter. At the time of retention, Ms. Egana entered into a written flat fee agreement for the criminal representation. After being retained, respondent visited Mr. Egana in prison a couple of times, and made approximately two court appearances to request continuances for his client.

Ultimately, respondent was discharged in January, 1999, shortly before Mr. Ega-na’s case was set to go to trial. At that time, Mr. Egana requested a copy of his file and requested that the unearned fee be returned. When respondent failed to comply, Mr. Egana filed a complaint with the ODC seeking a return of his unearned fee. Respondent did not provide an accounting, nor did he place the disputed portion of the fee in his trust account or refund the unearned portion to his clients. However, flhe eventually instituted a con-cursus proceeding and deposited $2,500 of the fee into the registry of the court.

Count II — Cuccia Matter

In August, 1997, shortly after he was admitted to the practice of law, respondent went to work as a contract attorney at a fixed salary for the law offices of Richard A. Cuccia. He left employment with Mr. Cuccia in May, 1998.

At about this same time, the ODC began investigating reports that Mr. Cuccia was engaged in a scheme whereby he used paid “runners” to solicit personal injury clients. In connection with its investigation of Mr. Cuccia, the ODC asked respondent to give a voluntary sworn statement regarding his employment at Mr. Cuccia’s law office. In his sworn statement, respondent denied having any firsthand knowledge of Mr. Cuccia’s runner-based solicitation scheme.

Mr. Cuccia was ultimately disbarred by this court based on his engaging in a runner-based solicitation operation and his failure to supervise his non-lawyer assistants who were engaging in the unauthorized practice of law. In re: Cuccia, 99-8041 (La.12/17/99), 752 So.2d 796.

Thereafter, the ODC commenced an investigation into whether respondent had been forthright in his sworn statement concerning his knowledge of solicitation activities at Mr. Cuccia’s office. In connection with this investigation, the ODC took a statement from Mr. Cuccia. When asked about respondent’s role in the solicitation scheme, Mr. Cuccia indicated respondent was never directly involved with the ^solicitation of clients or the use of runners. However, he stated he believed that respondent, along with the rest of the office staff, was “absolutely” aware of the firm’s dependence on the solicitation operation, noting that respondent would have had to be “deaf, dumb and blind” to not be aware of the scheme. In support, Mr. Cuccia observed that the office was relatively small (approximately 1,000 square feet) and that runners were on the premises on a daily basis. Mr. Cuccia also stated he mentioned the runner-based solicitation operation to respondent on several occasions.

Based on evidence developed in this investigation, the ODC concluded respondent was deliberately evasive in his earlier voluntary sworn statement to the ODC. It further determined he failed to report Mr. Cuccia’s misconduct.

DISCIPLINARY PROCEEDINGS

Following its investigation, the ODC instituted two counts of formal charges against respondent. In the first count, involving the Egana matter, the ODC primarily alleged a violation of Rules 1.5(f)(6) (failure to refund unearned advance fee and place disputed fees in trust), 1.15 (failure to promptly deliver client funds and make an accounting) and 1.16(d) (failure to protect client interests upon termination of representation by failing to surrender client papers and refund unearned advance fee) of the Rules of Professional Conduct. As to count two, involving the Cuccia matter, the ODC asserted alleged violations of Rules 3.3(a) (lack of candor to tribunal), 3.4(c) (failure to comply with tribunal orders), 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.3 (failure to report professional misconduct), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(c) L(engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct.

Respondent filed an answer essentially denying any misconduct on his part.

Hearing Committee Recommendation

The hearing committee conducted a formal hearing. Although respondent appeared at the hearing, he elected to not testify or present witnesses on his behalf.

Following the hearing, the hearing committee determined the ODC proved respondent violated Rule 1.16(d) in the Ega-na matter by failing to render a timely and accurate accounting to the Eganas. However, the committee declined to find any other rule violations in connection with this count.

As to the Cuccia matter, the committee found respondent did not directly participate in the solicitation scheme, but concluded there was clear and convincing evidence respondent knew of the illegal conduct taking place in Mr. Cuccia’s office. Specifically, the committee stated:

This case presents fine-line questions of knowledge and intent that must be drawn from circumstantial evidence, given [respondent’s] failure to testify.... [T]he evidence does establish clearly and convincingly that the runner program so permeated Cuccia’s office that [respondent] knew or reasonably should have known what was going on. [Respondent] admits that he had a duty to report misconduct; yet in the face of that misconduct (or at least an overwhelming appearance of impropriety — to mix concepts), [Respondent] took nine months to leave, did not investigate, did not confront Cuccia and made no report. [Respondent] turned a willful blind eye.

| ¡¡Based on his failure to report the misconduct of Mr. Cuccia, the committee concluded respondent violated Rules 8.3, 8.4(a) and 8.4(d).

Turning to respondent’s alleged omissions in connection with his sworn statement to the ODC, the committee declined to find a violation of Rule 3.3(a), which involves lack of candor to tribunal, noting that the ODC did not constitute a “tribunal.” However, the committee concluded respondent did not cooperate and deliberately failed to disclose information to the ODC, in violation of Rules 8.1(b), 8.1(c), 8.4(a), 8.4(c), 8.4(d) and 8.4(g).

As sanctions, the committee recommended imposition of a reprimand and payment of restitution for the misconduct subject of the Egana matter in Count I. As to Count II, relative to the Cuccia matter, the committee proposed respondent be suspended for a period of two years, with all but three months deferred, subject to a supervised twenty-one month period of probation with conditions.

Both respondent and the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board concurred in the committee’s factual findings in the Egana matter. However, the board found the hearing committee committed legal error when it failed to find a violation of Rules 1.5(f)(6) and 1.15. Based on its review of the record, the board determined respondent violated these rules by failing to provide an immediate accounting or placing the disputed funds in trust.

Turning to the Cuccia matter, the board determined the hearing committee erred in finding respondent did not violate Rules 3.3(a) and 3.4(c). The board found that during his sworn statement to the ODC, respondent was under oath and obligated to testify in a forthright manner, but instead gave “deliberate and evasive” answers and 1 ^knowingly failed to disclose in his sworn statement information he knew about Mr. Cuccia’s runner operation.

The board found respondent violated duties owed to his client, the legal system and the profession. Specifically, it recognized respondent failed to provide a timely accounting to the Eganas and, over two and one-half years later, still failed to refund the unearned fee. The committee noted the profession and the legal system were harmed by respondent’s failure to candidly respond to questions under oath and cooperate with the ODC, as well as through his failure to report Mr. Cuccia’s misconduct.

As aggravating factors, the board recognized multiple offenses, deceptive practices during the disciplinary process and refusal to acknowledge the nature of misconduct. In mitigation, it noted respondent’s absence of a prior disciplinary record and inexperience in the practice of law. Finding respondent’s inexperience militates in favor of leniency, the board recommended that respondent be suspended from the practice of law for a period of two years, with all but six months deferred, subject to an eighteen month supervised probation with the condition that he attend the Louisiana State Bar Association’s Ethics School program.

One board member dissented finding insufficient evidence that respondent actually knew or withheld any material facts.

Both the ODC and respondent filed an objection in this court to the board’s recommendation. As such, the matter was docketed for briefing and argument pursuant to Supreme Court Rule XIX, § HG(l)(b).

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 |7independent 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.

Turning first to the Egana matter, we find the record supports the hearing committee’s factual findings that respondent failed to render an accounting to his clients, failed to place the disputed portion of the fee in trust and failed to promptly refund the unearned portion of the fee. These facts unquestionably demonstrate respondent violated Rules 1.5(f), 1.15 and 1.16(d).

The rule violations in the Cuccia matter largely hinge on the question of whether respondent had knowledge of Mr. Cuccia’s solicitation actions at the time of his sworn statement to the ODC. The hearing committee made a factual finding based on the evidence before it that Mr. Cuccia’s solicitation activities permeated Mr. Cuccia’s office to such a degree that respondent had to have known of them. Respondent did not testify at the hearing, but, in oral argument before this court, vigorously asserts that he had no firsthand knowledge of any illegal activities on the part of Mr. Cuccia. However, respondent’s oral argument before this court does not constitute part of the record, and his failure to testify deprived the hearing committee of an opportunity to evaluate his credibility. Based on the record developed in these proceedings, we cannot say the hearing committee was clearly wrong when it determined respondent had knowledge of Mr. Cuccia’s activities, but failed to report this misconduct to the ODC or make a full disclosure to the ODC during his sworn [Sstatement. Therefore, we find respondent’s failure to report Mr. Cuccia’s misconduct constituted a violation of Rules 8.3 and 8.4 and his failure to make full disclosure to the ODC violated Rules 8.1 and 8.4.

Having found professional violations, we now turn to a discussion of the appropriate sanction. 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).

With regard to Count I, respondent’s conduct caused some actual harm to the Eganas by depriving them of their file and funds for a lengthy period of time.

In Count II, respondent’s actions may have caused no palpable harm to any clients, but violated the general duty imposed upon attorneys “to uphold the integrity of the bar.” Louisiana State Bar Ass’n v. Weysham, 307 So.2d 336 (La.1975). Attorneys are often in the best position to witness the systemic harm to the legal profession from organized schemes of misconduct, such as solicitation, which might not be readily apparent to the general public. As a result, our professional rules impose an obligation on all members of the bar to report any misconduct they become aware of in the course of their practice. An attorney’s failure to do so must be viewed as a serious offense.

|9The primary aggravating factor present in this case is the existence of multiple offenses. In mitigation, we find respondent has absence of a prior disciplinary record and inexperience in the practice of law. Respondent’s inexperience weighs strongly in our consideration of a sanction, as we conclude respondent’s actions in both Count I and II were primarily the products of inexperience in dealing with professional obligations rather than the result of any conscious desire to violate the ethical rules.

Accordingly, we will reprimand respondent for his actions in Count I. For his actions in Count II, we will suspend him for a period of two years, but defer all but six months of that suspension. Following the active part of his suspension, respondent shall be placed on probation for a period of eighteen months, with the condition that he attend the Louisiana State Bar Association’s Ethics School program.

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 Peter Ralph Brigandi be reprimanded for the conduct forming the basis of Count I. For the conduct forming the basis of Count II, it is ordered that respondent be suspended from the practice of law for a period of two years, with all but six months deferred. Following the active portion of his suspension, respondent shall be placed on supervised probation for a period of eighteen months with the condition he attend the Louisiana State Bar Association’s Ethics School program. Any violation of the condition of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension ex-ecutory, 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, |inwith legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The funds were still in the registry of the court at the time of the formal disciplinary hearing. After the hearing committee rendered its report, respondent provided restitution to the Eganas.

      . Mr. Cuccia was the only individual in the firm who paid the runners. He stated he was careful to do so behind closed doors in his personal office with no witnesses present.

      . The formal charges alleged other professional violations. However, the hearing committee and disciplinary board found there was insufficient evidence to support the allegations. The ODC did not object to these findings. Accordingly, we will not address these other allegations.

      . Like the hearing committee, we decline to find violations of Rules 3.3 and 3.4, which relate to lack of candor to a tribunal and failure to comply with a tribunal's order. While the ODC acts under the auspices of this court, it is not the type of "tribunal” contemplated by the professional rules.


author: PER CURIAM.

text:
    In re Aimee Doll BORROMEO.
    No. 2003-OB-0343.
    Supreme Court of Louisiana.
    April 9, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Aimee Doll Borromeo, is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    In re Laurence MAGINN.
    No. 2003-OB-1015.
    Supreme Court of Louisiana.
    April 10, 2003.
   In re Maginn, Laurence; Committee on Bar Admissions; — Plaintiff(s); Applying for Joint Application for Conditional Admission to the Bar.

ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Laurence Maginn, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall extend his current recovery agreement with the Lawyers Assistance Program, or execute a new such agreement, to cover a period of not less than two years.

2. Petitioner shall satisfactorily comply with all of the requirements imposed upon him by the Lawyers Assistance Program.

3. Petitioner shall comply with any requirements imposed upon him by the Office of Disciplinary Counsel of the Louisiana Attorney Disciplinary Board.

4. Reports shall be rendered regularly by the Lawyers Assistance Program to the Office of Disciplinary Counsel on such terms and conditions as the directors of those organizations deem appropriate.

5. The conditions of this admission shall be removed only upon the affirmative recommendation of the Executive Director of the Lawyers Assistance Program.

Should petitioner fail to make a good faith effort to comply with these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re Tamara V. MILTON.
    No. 2003-OB-1025.
    Supreme Court of Louisiana.
    April 10, 2003.
   In re Milton, Tamara V.; Committee on Bar Admissions; — Plaintiff(s); Applying for Joint Application for Conditional Admission to the Bar.

ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Tamara V. Milton, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. During this period, petitioner shall provide evidence to the Committee on Bar Admissions, on at least a quarterly basis, demonstrating that she has made a good faith effort to satisfy her financial obligations. Should petitioner fail to make a good faith effort to satisfy her financial obligations, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to thé Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


author: JjPER CURIAM.

text:
    In re Eddie G. CRAWFORD.
    No. 2002-B-2680.
    Supreme Court of Louisiana.
    April 21, 2003.
    Charles B. Plattsmier, G. Fred Ours, Baton Rouge, Counsel for Applicant.
    Sheri M. Morris, Edmond W. Shows, Shows, Cali & Berthelot, Baton Rouge, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary matter arises from four counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Eddie G. Crawford, an attorney licensed to practice law in Louisiana, but who has been suspended by various orders of this court since 1994. Despite the clear orders of this court prohibiting him from practicing law, respondent has continued to engage in the unauthorized practice of law. Finding such a blatant disregard for the orders of this court to be unacceptable, we now permanently disbar respondent.

PRIOR DISCIPLINARY HISTORY

Respondent was admitted to practice in 1983. His history of professional misconduct began in 1991, when he was admonished on three separate occasions for failing to cooperate with the ODC. In 1992, respondent was admonished on four separate occasions. Three of these admonitions involved failure to cooperate; the fourth admonition was for engaging in conduct involving fraud, deceit or misrepresentation.

In 1994, we suspended respondent for a period of ninety days for misconduct arising out of his representation of a client in a succession matter, including failure to communicate with the client and failure to promptly refund an unearned fee. In re: Crawford, 93-3148 (La.9/16/94), 643 So.2d 135. Because this suspension was for bless than one year, respondent was eligible for reinstatement upon compliance with Supreme Court Rule XIX, § 23; however, respondent did not seek reinstatement.

Approximately six months later, we again addressed disciplinary infractions committed by respondent. This time, we suspended respondent for a period of six months based on failure to act with diligence, failure to communicate, and commingling of client funds. In re: Crawford, 94-2960 (La.3/10/95), 651 So.2d 1338. Again, respondent did not seek reinstatement procedures.

Respondent’s most recent appearance before this court came in 1997, at which time we suspended respondent for a period of one year and one day for neglecting client matters and failing to advise his clients that he had been suspended during the course of his representation. In re: Crawford, 97-1002 (La.9/19/97), 699 So.2d 379. Respondent has not applied to this court for formal reinstatement pursuant to Supreme Court Rule XIX, § 24.

Thus, since September, 1994, respondent has been continuously suspended from the practice of law.

UNDERLYING FACTS

Count I — Caswell Succession Matter

In late 1997, the heirs of Virgil Caswell, who were California residents, paid respondent an advance fee of $1,800 to institute succession proceedings in Louisiana. At the time respondent accepted the fee, he was suspended from the practice of law. While respondent advised one heir and the spouse of another heir of his suspension, he failed to inform the several remaining heirs of this fact.

As the matter proceeded, respondent periodically communicated to the heirs that he was diligently pursuing the matter. In June, 1998, respondent contacted one heir, Tommie Jean Cain, and indicated he was completing the succession matter and [¡¡needed additional funds. Ms. Cain forwarded respondent a cashier’s check in the amount of $3,000. Respondent deposited the funds in his family joint bank account.

Upon learning the succession proceedings were never instituted and that respondent was not licensed to practice law, Ms. Cain filed a complaint with the ODC. In his response to the complaint, respondent agreed to provide restitution to the heirs; however, he failed to do so.

Count II — Jones Matter

In August, 1997, Harry Jones retained respondent to represent his interests in a personal injury matter against State Farm Insurance Company. At the time he was retained, respondent was suspended from the practice of law, but failed to inform his client or State Farm of his suspension from the practice of law. Ultimately, respondent negotiated a settlement on behalf of his client. State Farm issued a check in the amount of $5,266, which was made out to “Harry Jones & His Attorney Eddie Crawford.” Respondent and his client each endorsed the check. Respondent deducted his legal fee and disbursed the balance of the funds to his client.

Count III — Gillam Matter

In December, 1997, Carolyn C. Gillam retained respondent for $750 to institute proceedings relative to the succession of her brother. At the time he accepted the representation, respondent was suspended from the practice of law. Respondent failed to undertake any legal work in the matter for over two years. Dissatisfied with respondent’s inaction, Ms. Gillam made numerous requests for a refund of the unearned fee. On each occasion, respondent promised to return the funds, but never did so.

| ¿Subsequently, Ms. Gillam filed a complaint with the ODC. In his response to the complaint, respondent advised the ODC he intended to return the money within thirty days. However, respondent has yet to provide any restitution to Ms. Gillam.

Count IV — Kees Matter

In December, 1997, Edwena Ann Coleman Kees retained respondent for $750 to institute proceedings relative to the succession of her father. Respondent was suspended from the practice of law at the time he accepted the representation. Respondent had neglected to undertake any legal work in the matter for over two years.

Ms. Kees eventually filed a complaint with the ODC and sought a return of the unearned fee. In response to the ODC’s request for information, respondent asserted he would contact his client regarding the matter. There is no indication respondent ever did so, or that he paid any restitution to Ms. Kees.

DISCIPLINARY PROCEEDINGS

Following its investigation, the ODC filed formal charges against respondent alleging violations of Rules 1.3 (lack of diligence), 1.4(b) (failure to provide client sufficient information to participate intelligently in decisions subject of the representation), 1.5(a) (unreasonableness of legal fee), 1.16(a)(1) (failure to withdraw from representation of client when the representation resulted in professional misconduct), 1.16(d) (failure to protect client interests upon termination of representation), 4.1 (making a false statement of material fact to a third person in the course of a client representation), 5.5(a) (violating disciplinary regulation of another jurisdiction through unauthorized practice of law in that jurisdiction), 8.4(a) (violating | Bthe Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) of the Rules of Professional Conduct.

Respondent filed an answer to the formal charges. While not conceding he engaged in the unauthorized practice of law, respondent simply admitted that he was suspended from practice during the times in question and had promised to make restitution to his clients.

Hearing Committee Recommendation

Following a formal hearing, the committee concluded the ODC proved by clear and convincing evidence each of the allegations subject of the formal charges. Based on its findings, the committee recommended that respondent be disbarred from the practice of law. One committee member dissented without assigning reasons.

Respondent’s Objection/ODC''s Supplemental Memorandum

After the hearing committee issued its recommendation, respondent filed an objection to the hearing committee’s recommendation of disbarment. In his memorandum, he asserted he should not be disbarred but should instead be suspended for an additional period of time, with readmission subject to probationary terms.

The ODC filed a supplemental memorandum with the disciplinary board arguing respondent should be permanently disbarred. In support, the ODC relied on | ^Guidelines 8 and 9 from the Guidelines Depicting Conduct Which Might Warrant Permanent Disbarment contained in Appendix E Supreme Court Rule XIX.

Respondent was served with a copy of the ODC’s supplemental memorandum on permanent disbarment. He did not file a response, nor did he seek a remand to the hearing committee for the purpose of introducing additional evidence on this issue.

Recommendation of the Disciplinary Board

The disciplinary board concurred in the committee’s findings that the ODC proved by clear and convincing evidence respondent violated the professional rules charged. Specifically, the board concluded respondent’s “flagrant” unauthorized practice of law confirmed his total disregard of the legal profession and the privilege to practice law.

In addressing the issue of sanctions, the board found respondent intentionally violated duties owed to his clients, the public, and as a professional. The board recognized the Caswell heirs were harmed by the cost of the airfare and hotel accommodations it provided to respondent for their first meeting in California, as well as the fees to complete the legal work. The board also pointed out Ms. Gillam and Ms. Kees were not refunded their respective fees.

|7The board relied on the ABA’s Standards for Imposing Lawyer Sanctions to conclude the appropriate baseline sanction for respondent’s misconduct is disbarment. It found the mitigating factors of full disclosure and cooperation in the disciplinary process are significantly outweighed by the aggravating factors, which include respondent’s extensive prior disciplinary record, dishonest or selfish motive, pattern of misconduct, multiple offenses, vulnerable victims and substantial experience in the practice of law.

Placing emphasis on the aggravating factors, the board recommended that respondent be permanently disbarred from the practice of law. One board member dissented to the proposed sanction.

Respondent filed an objection to the board’s findings and recommendation. Based on such, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

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 |sbeen 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.

It is undisputed that respondent engaged in multiple instances of unauthorized practice of law in violation of the judgments of this court suspending him from practice. In addition, he neglected his client’s legal matters, failed to refund unearned legal fees and misrepresented his efforts relative to his clients’ respective legal matters. Finding the charges proven by clear and convincing evidence, we turn to the issue of an appropriate sanction for respondent’s misconduct.

In addressing the issue of sanctions, we are mindful that 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. 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. 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).

The sanctions imposed by this court for unauthorized practice of law are largely dependent on the individual circumstances of the case. In general, however, when the attorney has manifested a conscious intent to flout the authority of this court by practicing after being prohibited from doing so, we have not hesitated to impose | gdisbarment. See, e.g., In re: Jones, 99-1036 (La.10/19/99), 747 So.2d 1081 (attorney disbarred for engaging in the unauthorized practice of law on four occasions, after being suspended in the past for similar misconduct). The serious nature of such actions are underscored by La. R.S. 37:213, in which our legislature has made it a felony to engage in the unauthorized practice of law. It was against this backdrop that we included unauthorized practice of law as one of the types of conduct that might warrant permanent disbarment.

In his filings and argument before this court, respondent does not dispute he engaged in the unauthorized practice of law, but asks this court not to permanently disbar him and instead give him a “second chance” to remedy the error of his ways. However, respondent fails to recognize that on three prior occasions, we have given him the benefit of the doubt by imposing relatively lenient sanctions, only to have respondent continue to engage in misconduct. Respondent’s refusal to respect the authority of this court demonstrates he lacks the fitness to engage in the practice of law in Louisiana.

We do not lightly impose the sanction of permanent disbarment. In re: Lynch, 02-2275 (La.1/24/03), 840 So.2d 508. 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. Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Eddie G. Crawford 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), |init is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to make full restitution to his victims. 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 amendments to Supreme Court Rule XIX providing for permanent disbarment became effective August 1, 2001. Although the committee filed its recommendation on August 22, 2001, after the effective date of these amendments, the committee did not refer to them.

      . Guidelines 8 and 9 of Appendix E, Guidelines Depicting Conduct Which Might Warrant Permanent Disbarment, provide:
      Guideline 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
      Guideline 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct ... Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

      . Standard 4.41 provides disbarment is generally appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; Standard 4.61 provides disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client; Standard 5.11 provides disbarment is generally appropriate when a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice; and Standard 7.1 provides disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . As stated earlier, respondent has been admonished by the disciplinary board a total of seven times and disciplined by this court on three separate occasions.

      . Respondent was admitted to the practice of law fourteen years at time of the misconduct subject of these proceedings.


author: h KNOLL, Justice.

text:
    Marcus Paul DAUPHINE v. CARENCRO HIGH SCHOOL and Lafayette Parish School Board.
    No. 2002-CC-2005.
    Supreme Court of Louisiana.
    April 21, 2003.

      Dawn L. Morris, Larry L. Roy, George E. William, Jr., Preis, Kraft & Roy, Lafayette, Counsel for Applicant.
    Donald R. Cravins, Jr., Victor J. Versag-gi, Domengeaux, Wright, Roy & Edwards, Lafayette, Counsel for Respondent.
   h KNOLL, Justice.

The writ before us concerns an injunction and contempt proceedings. The two issues presented raise the validity vel non of the temporary restraining order (TRO), and notwithstanding any legal deficiencies of the TRO, whether the criminal contempt conviction based upon a violation of the TRO should be reversed. Specifically, defendants, Dr. James H. Easton, the superintendent of the Lafayette Parish School System, and Dr. Donald W. Aguil-lard, the principal of Carenero High School, were held in contempt of court for willfully violating a TRO delivered to them by plaintiffs attorney thirty minutes prior to graduation. The TRO directed them to allow the plaintiff, Marcus Dauphine, to “to participate in the graduation ceremonies of Carenero High School scheduled to occur on May 18, 2002, to the fullest extent possible and with all rights and privileges afforded to any and all of the graduates of Carenero High School and be allowed to receive a diploma.” For reasons that follow, we reverse, finding legal deficiencies render the TRO invalid, and notwithstanding that defendants could still be held in contempt of an invalid TRO, the record evidence fails to support that Drs. Easton and Aguillard intended to defy the court’s authority.

| ¡.FACTS AND PROCEDURAL HISTORY

On Wednesday, May 15, 2002, Principal Aguillard notified Dauphine’s mother that her son was ineligible to participate in the upcoming graduation ceremony scheduled for 2:30 p.m. on Saturday, May 18, 2002, because he was deficient one-half math credit required for graduation; the deficiency occurred as a result of Dauphine’s failure to successfully complete one semester of Algebra I during his freshman year in high school. On the afternoon of Friday, May 17, 2002, Superintendent Easton also telephoned Dauphine’s mother to tell her that her son would not be allowed to participate in Saturday’s graduation exercises because he failed to satisfy the math requirement needed for graduation. Sometime on Saturday, May 18, 2002, pri- or to the commencement of the graduation ceremony, Dauphine’s attorney obtained a TRO from the Fifteenth Judicial District Court. The order stated, in pertinent part:

IT IS HEREBY, ordered, directed and mandated, in the name of the State of Louisiana and of the Fifteenth Judicial District Court for the Parish of Lafayette, that Marcus Paul Dauphine be allowed to participate in the graduation ceremonies of Carenero High School scheduled to | ooccur on May 18, 2002, to the fullest extent possible and with all rights and privileges afforded to any and all of the graduates of Carenero High School and be allowed to receive a diploma.
A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED UNDER LA. R.S. 13:4611 FOR CONTEMPT OF COURT BY A FINE OF NO MORE THAN $1,000.00 OR BY CONFINEMENT OF JAIL FOR AS LONG AS SIX MONTHS, OR BOTH, AND MAY BE FURTHER PUNISHED UNDER THE CRIMINAL LAWS OF THE STAT [SIC] OF LOUISIANA. THIS ORDER SHALL BE ENFORCED BY ALL LAW ENFORCEMENT OFFICERS OF THE STATE OF LOUISIANA.

Although the order bore the signature of a judge of the Fifteenth Judicial District, it contained no reference to the judicial division of the signing judge and the judge’s name was not typewritten on the order. Because the order was obtained without having the Clerk of Court open his office on an emergency basis, the order also neither bore a filing stamp from the clerk of court nor the docket number for this proceeding. Although the order was issued on an emergency basis and at a time when the clerk of court’s office was not open, the signing judge did not certify a copy of the order for service as provided in La.Code Civ. PROC. AnN. art. 251(B).

Dauphine’s attorney testified that he and his law partner delivered the order to Principal Aguillard at the Cajundome. Although the identity of the signing judge could not be deciphered from the signature on the order, Principal Aguillard stated that approximately thirty minutes before graduation, two gentlemen dressed in suits, neither of whom he knew, handed him a folder. At that time, the two gentlemen told him that the folder contained an order signed by Judge Rubin.

After examining the order, Principal Aguillard consulted with Superintendent Easton who was in attendance at the Car-enero High School graduation. After conferring with each other and considering that Dauphine did not meet the requisite | ¿academic requirements for graduation, they concluded that they would not allow Dauphine to participate in the graduation ceremony. Their decision was further based upon the timing of delivery of the order and suspicions raised in the manner in which the order was presented, i.e., by someone other than a law enforcement official, the document had no court markings such as a docket number and court seal, and the order was illegibly signed.

On the following Monday, May 20, 2002, counsel for Dauphine filed a “Verified Writ of Injunction” with the Lafayette Parish Clerk of Court. At that point, the proceeding was assigned a docket number and was randomly allotted to Judge Byron Hebert. The record shows, however, that shortly after this filing, Dauphine voluntarily dismissed his petition for writ of injunction ostensibly because graduation had passed and no injunctive relief could be provided that would benefit Dauphine.

Additionally, Dauphine formally filed the TRO that Judge Rubin signed on the preceding Saturday, May 18, 2002, and service was made on Principal Aguillard and Superintendent Easton. Contemporaneous with that filing, counsel for Dauphine provided Judge Rubin with a letter that detailed what had transpired when he gave the restraining order to Principal Aguil-lard and Superintendent Easton just prior to the graduation exercise and further explained that Dauphine was not allowed to graduate. Judge Rubin then issued a ma sponte order, directing Principal Aguillard and Superintendent Easton to appear before his court to show whether they had complied with the TRO issued on Saturday, May 18, 2002.

On May 28, 2002, Judge Rubin conducted a hearing. After Judge Rubin examined the three individuals primarily involved, he held Principal Aguillard and Superintendent Easton in contempt of court for refusing to comply with the TRO. In Iffinding Aguillard and Easton in contempt, the trial judge first determined that it is only within the province of the court to determine the legality of orders and that individuals who choose to act in contravention of a court order place themselves in a precarious position. The trial judge further rejected the assertion of Aguillard and Easton that they could not obey the order because Dauphine simply was not eligible for graduation and compliance with the court order would have required them to violate state law. In discounting this argument, the trial judge stated that the circumstances of this case would have allowed the school board to grant an exception to the graduation requirements; Judge Rubin based this determination on correspondence he requested from the Board of Elementary and Secondary Education shortly before the contempt hearing. Moreover, the trial judge stated that even if Dauphine had not been granted a diploma, he could nonetheless have been allowed to participate in the graduation ceremony without violating state law. Judge Rubin ordered them to serve fifteen days in jail and to each pay a $250 fine. In lieu of being placed’in secured custody, the judge indicated the men would be under the electronic monitoring program.

After applying for supervisory writs and obtaining a stay of the trial court ruling, the Court of Appeal, Third Circuit, recalled the stay and denied the writ application, finding the defendants were required to obey the order' until it was stayed or reversed by orderly review. Dauphine v. Carenero High School, et al., KW 02-00590 (La.App. 3 Cir. 6/21/02). We granted the writ application of Easton and Aguillard to consider the propriety of the trial court’s ruling. Dauphine v. Carencro High School, et al., 02-2005 (La.11/22/02), 829 So.2d 1053.

LAW AND ANALYSIS

| sInjunctive Relief

We will first examine the validity of the TRO before we reach the contempt issue. Although this case addresses a TRO, it is important to remember that the underlying action is for an injunction. The TRO, when granted, is issued ancillary to an injunction. La.Code Civ. PROC. Ann. art. 3601.

A writ of injunction is a harsh, drastic, and extraordinary remedy and should only issue where the party seeking it is threatened with irreparable loss or injury without an adequate remedy at law. Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83, cert. denied, 397 U.S. 1075, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1970). Accordingly, La.Code Civ. Proc. Ann. art. 3601 provides that an injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.

During the pendency of an action for an injunction the' court may issue a TRO. Id. A TRO serves only as a temporary restraint on the defendant until the propriety of granting a preliminary injunction may be determined, objectively preserving the status quo until that determination. Powell v. Cox, 228 La. 703, 83 So.2d 908, 910 (1955). It is issued preliminary to a hearing and wholly independent from the hearing on a preliminary injunction. Id. A TRO does not determine any controverted right, but issues as a preventative to a threatened wrong and operates as a restraint to protect the rights of all parties involved until issues and equities can be resolved in a proper subsequent proceeding. Id.

Because injunctive relief and the issu: anee of a TRO are unusual remedies and their issuance should be carefully designed to achieve the essential correction at the least possible cost and inconvenience to the defendant, our Code of Procedure sets specific requirements for their issuance. With regard to the issuance of a TRO without notice under emergency conditions, La.Code Civ. Proc. Ann. art. 3603 provides:

|7A. A temporary restraining order shall be granted without notice when:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and
(2) The applicant’s attorney certifies to the court in writing the efforts which have been made to give the notice or the reasons supporting his claim that notice should not be required.
B. The verification or the affidavit may be made by the plaintiff, or by his counsel, or by his agent.

Elaborating on the notice provisions of article 3603, Comments (a) and (b) state:

This amendment [1985 Acts, No. 204, § 1] changes the requirement for obtaining a temporary restraining order by adding that the applicant’s attorney must show the efforts that have been made to give notice or must show why notice should not be required and further that irreparable injury will result before the adverse party or his attorney can be heard in opposition. The intent ... is to reduce the practice of issuing ex parte restraining orders without notice of any kind, and to permit the conduct of some type of adversary proceeding before, rather than after, the issuance of injunctive relief.

With regard to the form and content of the restraining order, La.Code Civ. PROC. AnN. art. 3604 provides, in pertinent part:

A temporary restraining order shall be endorsed with the date and hour of issuance; shall be filed in the clerk’s office and entered of record; shall state why the order was granted without notice and hearing; and shall expire by its terms within such time after entry, not to exceed ten days, as the court prescribes.

Furthermore, La.Code Civ. Pkoc. Ann. art. 3605 provides:

An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.

Finally, La.Code Civ. PROC. Ann. art. 3610 provides:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall |sindemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained.

Applying these codal requirements to Dauphine’s petition for injunctive relief and the issuance of a TRO, we find the TRO legally deficient in many respects. Although Dauphine presented the trial court a verified petition, it nevertheless lacked any certification by applicant’s attorney of the efforts which had been made to give notice or the reasons supporting his claim that notice should not be required. Likewise, when the trial court signed the restraining order, the court order failed to indicate the date and time of issuance and to set the amount of security for indemnification of the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained. Furthermore, the signed TRO was issued without a statement of why the order was granted without notice and hearing.

Although arguably the failure of the trial court to indicate the time and date of issuance only adversely affected Dau-phine’s interest, the same cannot be said about the other deficiencies. The failure of counsel to certify to the court his efforts to give notice or to certify why notice should not have been required, the absence of language in the temporary restraining stating why the order was granted without notice and hearing, and the trial court’s failure to require security, all directly affect Drs. Easton and Aguillard. For reasons elaborated upon more fully infra, not only do these flaws affect the validity of the TRO, they should have been considered in the trial court’s determination of the issue of the alleged constructive contempt of Drs. Easton and Aguillard.

li)At this juncture it is important to recall that Dauphine’s attorney delivered the TRO to Drs. Easton and Aguillard only thirty minutes or less before the graduation ceremonies for Carenero High School were to commence. At that time, approximately 240 graduates, their parents, families, and friends were gathered at the Ca-jundome, awaiting commencement of the graduation ceremony.

Albeit time may have been of the essence because of the events that unfolded in the days just before graduation, it cannot be overlooked that Dauphine was notified of his ineligibility to graduate on the Wednesday preceding commencement exercises and that decision was confirmed on the Friday before the Saturday graduation. As such, the opportunity, though limited, for Dauphine’s counsel to provide notification to the appropriate parties of his intended judicial action nonetheless existed. In stark contrast, the petition for injunctive relief is not only void of allegations of attempted notification, there appears no allegation of why notice should not be required. A |incursory review of the requirements for obtaining a TRO reveals that the applicant is required to notify the adverse party of its intention to obtain a TRO before applying or indicate why notice should not be given or what efforts he made to give notice. See John W. Fisk Co. v. Michel, 97-2105 (La.App. 4 Cir. 3/25/98), 709 So.2d 1061, 1064-65. Drs. Easton and Aguillard testified without contradiction that no one gave them advance notice that Dauphine was pursuing judicial intervention to allow him to participate in graduation.

Coextensive with the notice requirement of La.Code Civ. Proc. ÁNN. art. 3601 is the mandate of La.Codb Civ. Proc. AnN. art. 3604 which requires that the TRO “shall state why the order was granted without notice and hearing.” The word “shall” is mandatory. La.Code Civ. PROC. Ann. art. 5053; La.Code Crim. Proo. Ann. art. 5; La.Rev.Stat. Ann. § 1:3. In the present case, the court order failed to state why the order was granted without notice and hearing. The trial court’s allowance of this legally deficient order provided Dau-phine with the opportunity to use the TRO as a mean's to obtain that which he may have not been otherwise entitled. As we observed in Powell, a TRO is granted to preserve the status quo and it does not determine any controverted right. Powell, 83 So.2d at 910. In the present case, Dauphine’s right to participate in graduation and to receive a diploma was controverted. In this regard, pursuant to the requirements of La.Code Civ. Proo. Ann. art. 3603(A)(2) the trial court should have denied Dauphine’s request for a TRO for failure to certify that notification efforts were undertaken or to allege and certify in writing why notification should not be required.

Moreover, even though La.Code Civ. Proc. Ajnn. art. 3610 dispenses with the need for security in those instances identified by law, e.g., La.Rev.Stat. Ann. § 13:4581, no such dispensation applies to the case sub judice. In Montelepre, Inc. v. Pfister, 355 So.2d 654 (La.App. 4 Cir.1978), the appellate court ordered the trial Incourt to recall a TRO as improperly issued for failure to require security. The appellate court stated:

[T]he issuance of the temporary restraining order should have been conditioned upon the furnishing of security in an amount fixed by the trial court. The trial court erred in issuing the restraining order without requiring security, and the order is therefore invalid.

Montelepre, Inc., 355 So.2d at 656. See also Glass v. Wiltz, 483 So.2d 1248 (La.App. 4 Cir.1986); Lambert v. Lambert, 480 So.2d 784 (La.App. 3 Cir.1985); Cochran v. Crosby, 411 So.2d 654 (La.App. 4 Cir.1982) (holding that a preliminary injunction should be vacated and set aside if the trial court issues the injunction without security being furnished). But see Lassalle v. Daniels, 96-0176 (La.App. 1 Cir. 5/10/96), 673 So.2d 704, writ denied, 96-1463 (La.9/20/96), 679 So.2d 435, cert. denied, 519 U.S. 1117, 117 S.Ct. 963, 136 L.Ed.2d 848 (1997); Hernandez v. Star Master Shipping Corp., 94-1553 (La.App. 1 Cir. 4/7/95), 653 So.2d 1318; Stuart v. Haughton High School, 614 So.2d 804 (La.App. 2 Cir.1993) and Jackson v. Town of Logansport, 322 So.2d 281 (La.App. 2 Cir.1975) (holding that vacating an improper preliminary injunction is not necessary in all cases issued without security and that in some instances the case should be remanded to the trial court with directions that security be furnished).

Just minutes before the graduation ceremony was about to commence, Drs. Easton and Aguillard were presented with the option of either complying with the TRO, an action they considered beyond their authority because of the BESE and local school board requirements for graduation, or to halt the graduation ceremony until Dauphine’s petition for injunctive relief could be heard on May 24, 2002. The trial court commented in its reasons for judgment that even if Dauphine could not have been presented with a diploma, Drs. Ea-ston and Aguillard could have allowed him to participate in the graduation ceremonies. A review of the TRO shows that Drs. Easton and Aguillard were “ordered, directed and mandated ... that Marcus Paul Dauphine |iabe allowed to participate in the graduation ceremonies ... to the fullest extent possible ... and be allowed to receive a diploma.” (Emphasis added). The wording of the TRO certainly indicates that in order to comply with the TRO participation in the ceremony would not have constituted compliance — the granting of diploma was also required. Clearly, had Drs. Easton and Aguillard chosen to halt graduation costs and damages would have been incurred. Thus, we find that the restraining order issued without security was invalid. Montelepre, 355 So.2d at 656; Glass, 483 So.2d at 1248; Lambert, 480 So.2d at 784; Cochran, 411 So.2d at 654.

In reaching this determination, we need not resolve the conflict among the circuits as to the proper disposition when the trial court has not set the amount of security. See Montelepre, Inc. and compare Las-salle, supra. Under the facts of the present ease, a remand to the trial court for the setting of security at this time would be fruitless. The graduation ceremony of May 2002 has long passed, Dauphine dismissed his suit for injunctive relief, and he has now satisfied the requirements for high school graduation.

In conclusion, we find the TRO was fatally flawed in multiple respects. Thus, considering the facts of this case, we find the only appropriate course of action is to recognize that the TRO of May 18, 2002, was invalid. Although we find the TRO invalid, our inquiry does not end here. We must further determine if Drs. Easton and Aguillard can be held in contempt of court for having violated this legally deficient order.

Constructive Criminal Contempt

Relying on the timing of the delivery of the TRO, the method of delivery, and the appearance of the TRO, Drs. Ea-ston and Aguillard contend that no reasonable person in the same circumstances would have complied with the order and that they |13could not have complied with the order. Whether or not a court order is transparently invalid on its face or compliance with the court order could not be accomplished, the trial court was presented the more basic question of whether the elements of the crime of criminal contempt were proven beyond a reasonable doubt. See State in the Interest of R.J.S., 493 So.2d 1199 (La.1986). Finding that the evidence adduced by the trial judge failed to establish beyond a reasonable doubt that Drs. Easton and Aguillard actions were done with an intent to defy the court’s authority, we reverse their contempt convictions.

It is a well-accepted principle in proceedings for criminal contempt that orders of the trial judge in the conduct of trials must be obeyed, irrespective of the ultimate validity of the order, unless the trial judge stays the order or ruling to permit a review. City of Lake Charles v. Bell, 347 So.2d 494, 496-97 (La.1977); Matter of Hipp, 5 F.3d 109 (5 Cir.1993). The correctness of a court order or ruling is not contested by deciding to willfully disobey it, without suffering the consequence of that disobedience. Respect for judicial process is a small price for the civilizing hand of law. Absent a showing of transparent invalidity or patent frivolity surrounding the order, it must be obeyed until stayed or reversed by orderly review. City of Lake Charles, 347 So.2d at 496; see also United States v. Dickinson, 465 F.2d 496 (5th Cir.1972).

As we noted in City of Lake Charles,

The criminal contempt exception requiring compliance with court orders, while invalid non-judicial directives may be disregarded, is not the product of self-protection or arrogance of judges. Rather it is born of an experience-proven recognition that this rule is essential for the system to work. Judges are charged with the final responsibility to 114adjudicate legal disputes. Determinations take the form of orders. The problem is unique to the judiciary because of its particular role. Disobedience to a legislative pronouncement in no way interferes with the legislature’s ability to pass laws. The dispute is simply pursued in the judiciary, and the legislature is free to discharge its responsibilities despite the disregard of its statutes. Law enforcement is also not brought to a standstill by failure to convict those who disregard the unconstitutional commands of policemen.
On the other hand, the deliberate refusal to obey an order of court without testing its validity through established processes requires further action by the judiciary, directly affecting its ability to discharge its duties and responsibilities. While it should be sparingly used, the power of courts to punish for contempt is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the judicial process. Without this authority courts would be mere boards of arbitration whose orders, ruling, judgments and decrees would be only advisory. Dickinson, supra. A court’s power to decide includes the power to decide wrongly.

City of Lake Charles, 347 So.2d at 496-97.

The rule that invalid court orders must nevertheless be obeyed until set aside presupposes the existence of at least three conditions: 1) the court issuing the order must enjoy subject matter and personal jurisdiction over the controversy; 2) adequate and effective remedies must be available for orderly review of the challenged ruling, and 3) the order must not require an irretrievable surrender of constitutional guarantees. City of Lake Charles, 347 So.2d at 497.

The Louisiana Code of Civil Procedure defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” La.Code Civ. Proo. Ann. art. 221. Drs. Easton and Aguillard were convicted of willful disobedience of a court order, which constitutes constructive contempt of court. La.Code Crv. PROC. Ann. art. 224(2).

A contempt of court proceeding is either criminal or civil, which is determined by what the court primarily seeks to accomplish by imposing sentence. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). In a criminal contempt proceeding, the court 11Bseeks to punish a person for disobeying a court order, whereas in a civil contempt proceeding, the court seeks to force a person into compliance with a court order. State in the Interest of R.J.S., 493 So.2d at 1202 and n7 (citing Shillitani, 384 U.S. at 364, 86 S.Ct. 1531). In the instant case, the object of the proceeding was to determine whether Drs. Easton and Aguillard should be punished for willfully disobeying the court’s May 18, 2002 order, thus it is a criminal contempt proceeding.

Criminal contempt is a crime, and the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal proceeding against conviction of a crime except upon proof beyond a reasonable doubt of every fact necessary to constitute the contempt charge. State in the Interest of R.J.S., 493 So.2d at 1202. On appellate review of criminal contempt, the reviewing court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the contempt charge was proved beyond a reasonable doubt. Id.

Willful disobedience of a court order requires a consciousness of the duty to obey the order and an intent to disregard that duty. Id. at 1203. The purpose of charging and convicting a defendant for criminal contempt is vindication of the public interest by punishment of contemptuous conduct. Id. (citing R. PeRIíins, CRIMINAL Law 533 (1969)). Therefore, in order to constitute willful disobedience necessary for criminal contempt, the act or refusal to act must be done with an intent to defy the authority of the court. Id. (citing E. Dangel, Contempt § 171 (1939)).

General criminal intent “is present ... when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.”

l1f;Drs. Easton and Aguillard testified that during their years of service to the education system they both received court documents in the course of their respective official duties as superintendent of schools and principal. They both testified that they are familiar with court documents and what they typically look like.

From the outset, we point out that our examination of the TRO shows that the signature affixed to the TRO was illegible and nothing on the document indicates the identity of the issuing judge. It is also obvious that the document presented to Drs. Easton and Aguillard contained no docket number, indicated no reference to the judicial division issuing the order, and bore no endorsement of the fact and date of filing. Though we often take these endorsements for granted, they are not merely embellishments or ornamentations affixed to paper. To the contrary, these endorsements are indicia of court records and signify their character as official pleadings or documents. Although we are keenly aware in the present case that the procurement of this TRO occurred on a weekend at a time when the Clerk of Court’s office was closed, La. Civ.Code Ann. art. 251(B) authorizes a judge to certify an order for service in such a situation if it is determined that an emergency situation exists.

Considering the absence of these aforementioned endorsements from the TRO, the timing of the delivery of the order, and the method of delivery, we cannot say that it was shown beyond a reasonable doubt that Drs. Easton and Aguillard intentionally chose to defy the court order. Although the invalidity of the TRO does not preclude a finding of criminal contempt, when the causes for that invalidity are placed into | ^perspective with the factual setting in which Drs. Easton and Aguillard acted, it cannot be said that it was proven beyond a reasonable doubt that the actions of Drs. Easton and Aguillard were acts of defiance directed to the authority of the trial court. We therefore conclude that the evidence in the record, when viewed in the light most favorable to the prosecution, is insufficient for a rational trier of fact to conclude that Drs. Easton and Aguillard willfully disobeyed the order of the trial court.

DECREE

For the foregoing reasons, the order of May 23, 2002, holding Dr. James H. Ea-ston and Dr. Donald W. Aguillard in contempt of court is reversed, vacated, and set aside. The fines that Dr. James H. Easton and Dr. Donald W. Aguillard paid are ordered reimbursed.

REVERSED, VACATED, AND SET ASIDE.

JOHNSON, J., dissents.

      . Dauphine failed two classes during his four years of high school: one-half year of Algebra I in 1999 and Family & Consumer Science I in 2000. In the Fall of 2001, Dauphine successfully completed a correspondence course
      entitled Family Life Education offered through Louisiana State University. There is no showing that Dauphine attempted to retake the Algebra I course during the remainder of his high school years. The Louisiana Board of Elementary and Secondary Education (BESE) requires each high school graduate to successfully complete twenty-three (23) hours of course work to become eligible for graduation, one of the requirements being the one-half unit of Algebra I that Dauphine failed. Thus, Dauphine was short one-half math credit for graduation from high school.
      One of the allegations raised in Dauphine’s petition for injunctive relief is that his guidance counselor told him that with the successful completion of his Family Life course by correspondence he would be eligible for graduation in May 2002.. Dauphine alleges that relying upon that information, his mother paid graduation fees and costs on March 9, 2002. Because of the facts of this case and Dauphine's dismissal of his petition for in-junctive relief immediately after he was denied participation in graduation, see page 1101, infra, these factual allegations were not proven and tested at a hearing. Accordingly, they remain unproven allegations.

      . The Rules of the Fifteenth Judicial District Court provide that in a non-family matter docket suit in which there is a request for a temporary restraining order, “the suit must be filed and assigned to a division before any Order may be submitted to a Judge for signature.” It further provides that in an emergency situation a judge may enter an order granting a TRO outside his division where the assigned judge cannot be contacted. These rules do not specifically encompass the situation presented in the present case where there was no formal suit filed and allotted to a judge because it was initiated on a weekend. Although the district court rules provide for a duty judge during the weekdays, the rules are unclear if a duty judge is assigned for weekends.

      . There is no indication that Drs. Easton and Aguillard were provided copies of Dauphine’s petition for injunctive relief or any of the supporting documents. At this juncture we also point out that we do not reach the issue of whether such notification was proper. See n7, infra.

      . The trial court called Dauphine’s counsel, Aguillard, and Easton to testify and it questioned them about what transpired at graduation. Dauphine, his mother, and Dauphine’s counsel’s law partner did not testify.

      . After the appellate court lifted the stay and denied the writ application, Drs. Aguillard and Easton paid the fine and served fifteen days under house arrest.

      . See Rabalais v. Hillary Builders, 62 So.2d 846 (La.App. 2 Cir.1953) (holding that "[pier-sons sought to be enjoined or restrained are bound by the order from the time they have notice of the signing of the order, whether service has been made or not.” Rabalais, 62 So.2d at 849). Accordingly, the issuing judge's notation of the time and date of issuance would aid the moving party in showing exactly when the TRO became effective.

      . Because of our resolution of this matter, we do not reach the question of whether the law required service of the TRO by law enforcement officials or whether delivery by an attorney sufficed.

      . Compare that setting to Dauphine's knowledge that he had failed one semester of Algebra I in his freshman year of high school. Significantly, on April 11, 2002, Dauphine and his mother had notice of the requirements for graduation, including the core curriculum requirements, and they and other anticipated graduates were told in writing as follows:
      A student may not receive a Louisiana High School Diploma until all stated requirements are met; therefore, participation in the high school graduation ceremonies are reserved for students who will actually receive a Louisiana Diploma. A copy of the necessary documentation is enclosed for your review.
      * * *
      Attached is a list of parish guidelines regarding procedures for graduation. Please read the list carefully and sign the form indicating that you have read and understand the guidelines. Any infraction of any of the guidelines may jeopardize your child’s participation in this ceremony.
      On April 11, 2002, Dauphine and his mother signed receipt of this information and attested that "I have read, understand, and accept the rules and guidelines required in order to participate in the graduation ceremony.”

      . The record contains no evidence of when Dauphine contacted counsel to pursue the petition for injunctive relief.

      . They also argue that the trial court lacked jurisdiction. We find the trial court was presented with a justiciable controversy at the time Dauphine sought injunctive relief, it likewise had the requisite subject matter and personal jurisdiction to adjudicate that controversy. Although Drs. Easton and Aguillard further contend the TRO was facially invalid, because of our disposition of this case we need not reach that argument.

      . One of the contentions raised in the hearing was the perception of Drs. Easton and Aguillard that the TRO was part of a hoax. In an attempt to explore that state of mind, their counsel sought to elicit further testimony on this question. Although counsel for Dr. Aguillard attempted to ask what indicia he looked for on those documents, the trial court refused to allow such evidence into the record. As a result of that evidentiary ruling, this line of inquiry was not developed further.

      . See n7, supra, noting that we do not reach the legal question of how service of a TRO is statutorily accomplished.


author: |, KNOLL, Justice.

text:
    Brian R. BECHT v. MORGAN BUILDING & SPAS, INC.
    No. 2002-C-2047.
    Supreme Court of Louisiana.
    April 23, 2003.

      John T. Andriskhok, Jude C. Bursavich, Murphy J. Foster, III, Baton Rouge, Counsel for Applicant.
    Chad F. Reynolds, Baton Rouge, Counsel for Respondent.
   |, KNOLL, Justice.

Louisiana Revised Statutes 23:631(A)(l)(b) imposes the duty upon an employer to pay any amount due under the terms of employment to an employee, upon his or her resignation, on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first. We granted this writ for the sole reason of evaluating the correctness of the court of appeal’s finding that an extension of this statutorily imposed time period by an employment contract is contrary to public policy. However, after granting the writ we learned that prior to trial, the parties had entered into a stipulation of facts which prevents us from reaching the issue for which we granted the writ. We find the court of appeal unnecessarily reached this legal issue because all of the elements necessary to establish a violation of La. R.S. 23:631 are present in the stipulation. Accordingly, we pretermit the issues raised in the court of appeal opinion and affirm, as the result is correct.

FACTS AND PROCEDURAL HISTORY

Plaintiff was employed by defendant on February 23, 1998, as a salesman of Importable or modular buildings, portable spas, hot tubs, gazebos and greenhouses. In connection with his hiring, plaintiff signed a Standard Employment/Non-Competition Agreement which set out the terms of his employment. Pursuant to the agreement, plaintiff was employed on a full-time basis, earning straight commission. Upon termination, the agreement specified that a sales person who made a sale “will receive his or her 75% share of the Store’s Commissions on those sales made prior to termination if the product has been DELIVERED, ACCEPTED, by the customer AND the account has been PAID IN FULL prior to the end of the last business day during which he or she was at work. The final commissions, if any, will be paid within forty-five (45) days of the end of the month during which the salesperson terminated.”

On September 7, 1998, plaintiff voluntarily resigned from his sales position and, on October 7, he made a demand for unpaid wages. On November 23, 1998, 47 days past demand, plaintiff received a paycheck in the amount of $386.47 representing commissions arising from contracts on which plaintiff was identified as the salesman and which had been delivered and completely funded on the date plaintiff left his employment. Nevertheless, on March 4, 1999, plaintiff brought suit alleging he had not been paid in full in accordance with La. R.S. 23:631 and sought penalties and attorney’s fees pursuant to La. R.S. 23:632. Before trial in the city court of Baton Rouge, the parties submitted the case on briefs pursuant to a stipulation of facts entered into on May 8, 2000. In particular, the parties agreed to the following:

6.
On October 7, 1998, Becht made a demand for payment through Lee Pace, an employee of Morgan
$ $ ‡ $
8.
Contract number 446736, in the name of Jeff Pollard, was delivered on |gAugust 27, 1998 and completely funded on August 24, 1998. Becht was identified as the salesman on this contract and has not been paid a commission on said contract. The commission due is $41.15.
13.
For purposes of calculation of average daily wage, the parties have agreed to average Becht’s wages over the course of his employment. Thus, Becht’s average daily wage is $99.04.

On August 4, 2000, the trial court rendered judgment in favor of plaintiff. In its reasons for judgment, the court stated that under La. R.S. 23:632, plaintiff was entitled to 90 days penalty wages, totaling $8,913.60, based on the neglect of defendant to pay plaintiff the commission of $41.15. The court further found La. R.S. 23:632 entitled plaintiff to $4,247.48 in attorney’s fees.

On appeal, the First Circuit affirmed the trial court’s award. In so doing, the court of appeal rejected defendant’s argument that the matter was governed by the terms of the employment contract which provided “final commissions, if any, will be paid within forty-five (45) days of the end of the month during which the salesperson terminated,” rather than La. R.S. 23:631, which strictly requires the payment of wages not later than fifteen days following discharge or resignation. The court found that the main purpose of La. R.S. 23:631 and 23:632 was to compel an employer to pay the earned wages of an employee promptly after his dismissal or resignation. Because the provisions were intended to protect the public interest, the court found that defendant could not rely on a contract term in direct violation of this well-established Louisiana law. Accordingly, the court of appeal held that penalty wages provided under La. R.S. 23:632 were properly awarded due to defendant’s failure to pay plaintiff his earned wages within fifteen days of resignation.

J^DISCUSSION

Louisiana Revised Statutes 23:631(A)(l)(b) creates liability for an employer who fails to timely pay wages owed to an employee after the employee voluntarily leaves employment:

Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first.

In addition, La. R.S. 23:632 specifies that penalty wages and attorney’s fees may be awarded for such a violation:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from the time of making the first demand following discharge or resignation.

In order to recover penalty wages and attorney’s fees under La. R.S. 23:632, the claimant must show that (1) wages were due and owing; (2) demand for payment was made where the employee was customarily paid; and (3) the employer did not pay upon demand. Miller v. Heidi’s Inc. of Baton Rouge, 818 So.2d 959, 963 (La.App. 1 Cir.2002); Cleary v. LEC Unwired, L.L.C., 804 So.2d 916, 923 (La.App. 1 Cir.2001); Harvey v. Bass Haven Resort, Inc., 758 So.2d 264, 268 (La.App. 3 Cir.2000); Richard v. Vidrine Automotive Services, Inc., 729 So.2d 1174, 1177 (La.App. 1 Cir.1999); Hebert v. Insurance Center, Inc., 706 So.2d 1007, 1013 (La.App. 3 Cir.1998); Pokey v. Five L Investments, Inc., 681 So.2d 489, 492 (La.App. 1 Cir.1996).

Defendant asserts that, pursuant to the employment contract, it was not|RobIigated to provide a final accounting of commissions until November 14, 1998 — 45 days from the end of the month plaintiffs employment was terminated. Defendant further claims that it did not receive a waybill documenting that contract 446736 had been delivered to the customer until November 19, 1998. As a result, defendant contends that plaintiffs demand for payment on October 7, 1998 was premature, and therefore, without effect.

Defendant’s argument is without merit. Contrary to the court of appeal, however, we find that an analysis of the public policy implication arising from an employment contract which extends the deadline under La. R.S. 23:631 is unnecessary in this case. We instead find defendant’s claims are forestalled by the clear terms of the stipulation of facts entered into by the parties on May 8, 2000. As this Court stated in R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600 (La.1983):

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case.

Id. at 601 (citations omitted). Accordingly, we note with significance that all of the elements necessary to establish a violation of La. R.S. 23:631 are sufficiently presented in the stipulation itself. Indeed,- the stipulation clearly states that plaintiff “made a demand for payment through Lee Pace, an employee of [defendant]” on October 7, 1998. Furthermore, the stipulation reflects that all of the conditions entitling plaintiff to a commission under the employment contract, i.e., delivery, acceptance, and payment by the customer, had been satisfied before plaintiff resigned from employment. Indeed, defendant concedes that plaintiff was still “due” $41.15 in commissions arising from a contract number 446736 as of the time of trial — over a year and a half after he resigned. Therefore, payment was not timely made under either the fifteen day period proscribed by La. R.S. 23:631 or the forty-five day period |fioutlined in the employment contract.

Because we granted this writ solely to evaluate the court of appeal’s holding regarding the extension of the La. R.S. 23:631 deadline, we pretermit defendant’s remaining assignment of errors.

DECREE

For the foregoing reasons, the lower courts’ awards of penalty wages and attorney’s fees are affirmed.

AFFIRMED.

CALOGERO, C.J., and VICTORY and JOHNSON, JJ., concur.

      . The court also awarded plaintiff an additional sum-of $1000.00 in attorney's fees for the appeal.


text:
    Roosevelt EZELL v. DIRECT LABOR, INC. and ABC Insurance Company.
    No. 2003-C-0757.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Ezell, Roosevelt; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 113,010; to the Court of Appeal, First Circuit, No. 2002 CA 0567.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Larry LOFTON v. STATE of Louisiana.
    No. 2002-KH-2351.
    Supreme Court of Louisiana.
    May 9, 2003.
   In re Lofton, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 288-637; to the Court of Appeal, Fourth Circuit, No. 2002-K-1221.

Granted for the sole purpose of transferring the application to the district court with instructions to the district judge to act on relator’s writ of habeas corpus filed via certified mail on April 11, 2002. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Myrne CAMPBELL, Individually and as Executrix of the Succession of Carol Campbell v. CITY OF NEW ORLEANS, Cesar R. Corzantes, E.M.T., Virden D. Rester, E.M.T., Vikrom S. Sottiurai, M.D., Harold T. Shelby, M.D., et al.
    No. 2003-CC-1257.
    Supreme Court of Louisiana.
    May 14, 2003.
   In re Campbell, Myrne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 98-18633, 00-1294; to the Court of Appeal, Fourth Circuit, No. 2003-C-0696.

Denied.


text:
    STATE of Louisiana v. Rickey Joseph LANGLEY.
    No. 2003-KK-1368.
    Supreme Court of Louisiana.
    May 15, 2003.
   In re Langley, Ricky Joseph; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 10258-02; to the Court of Appeal, Third Circuit, No. KW 03-00579.

Denied.


text:
    STATE of Louisiana v. Rickey Joseph LANGLEY.
    No. 2003-KK-1369.
    Supreme Court of Louisiana.
    May 15, 2003.
   In re Langley, Ricky Joseph; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 10258-02; to the Court of Appeal, Third Circuit, No. KW 03-00598.

Denied.


text:
    Joseph BUJOL, III, et al. vs. Entergy Services, Inc., et al. C/W Don A. Perkins, et al. v. ENTERGY SERVICES, INC., et al.
    No. 2003-C-0492.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re National Union Fire Insurance Company of Pittsburgh, PA; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, Nos. 47,095, 47,096; to the Court of Appeal, First Circuit, No(s). 2000 CA 1621, 2000 CA 1622.

Granted. Consolidated with 2003-C-0502.

WEIMER, J., recused.


text:
    Joseph BUJOL, III, et al. v. ENTERGY SERVICES, INC., et al. Don Perkins, et al. v. Entergy Services, Inc., et al.
    No. 2003-C-0502.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re X.L. Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, Nos. 47,096, 47,095; to the Court of Appeal, First Circuit, No(s). 2000 CA 1621, 2000 CA 1622.

Granted. (Consolidated with No. 2003-C-0492).

WEIMER, J., recused.


text:
    F. Kirby NEWBURGER v. Robert F. SHARP, M.D., et al.
    No. 2003-C-0697.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Newburger, F. Kirby; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, Nos. 565-602, 567-805; to the Court of Appeal, Fifth Circuit, No(s). 02-CA-732, 02-CA-733, 02-CM-332.

Granted. Consolidated for argument with 2002-CC-3060, International River Center, et al. vs. Johns-Manville Sales Corporation.


text:
    STATE ex rel. Larry BRISTER v. STATE of Louisiana.
    No. 2002-KH-2187.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Brister, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. 0, No. 98 CR3 72050; to the Court of Appeal, First Circuit, No. 2002 KW 918.

Relator represents that the district court has failed to act timely on a motion for production of guilty plea transcript he filed on or about June, 2000. If relator’s representation is correct, the district court is ordered to consider and act on the motion. The district court is ordered to provide this Court with a copy of its judgment.