author: LaROSE, Judge.

text:
    ALLIEDSIGNAL RECOVERY TRUST, Petitioner, v. ALLIEDSIGNAL, INC., Respondent.
    No. 2D05-4251.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2006.

      Donald B. Ayer, Gregory M. Shumaker, Edward KM. Bilich, Michael S. Fried of Jones Day, Washington, D.C.; and John W. Frost, II, of Frost, Tamayo, Sessums & Aranda, P.A., Bartow, for Petitioner.
    Benjamin H. Hill, III, and Dennis P. Waggoner of Hill, Ward & Henderson, P.A., Tampa; Steven D. McCormick, PC of Kirkland & Ellis, LLP, Chicago, Illinois; Major B. Harding and John Beranek of Ausley & McMullen, P.A., Tallahassee; Eugene F. Assaf and Craig S. Primis of Kirkland & Ellis, LLP, Washington, D.C., for Respondent.
   LaROSE, Judge.

AlliedSignal Recovery Trust (Trust), a group of creditors of Breed Technologies, Inc. (Breed), petitioned this court for cer-tiorari review of an interlocutory order disqualifying its trial counsel, Geoffrey Stewart, in Breed’s fraud lawsuit against AlliedSignal, Inc. (AlliedSignal). In an earlier order, we granted the petition and quashed the trial court’s order. We take this opportunity to explain our reasoning.

At the outset, we note that “certiorari is the proper remedy to seek review of an order granting or denying a motion to disqualify counsel or a law firm.” Gonzalez v. Chillura, 892 So.2d 1075, 1076 (Fla. 2d DCA 2004). After all, an order disqualifying counsel denies the right to choose one’s counsel and works a material injury that cannot be remedied on appeal. Id. at 1076-77; City of Lauderdale Lakes v. Enter. Leasing Co., 654 So.2d 645, 646 (Fla. 4th DCA 1995).

The underlying facts are straightforward. Breed manufactured automobile air bag systems. Safety Restraint Systems (SRS), an AlliedSignal division, also manufactured automobile safety products. Breed retained Mr. Stewart, long-time counsel for Breed and its founders, to negotiate the purchase of SRS from Allied-Signal. In late 1997, Breed acquired SRS for $710,000,000.

In mid-1998, Breed allegedly learned that SRS’s financial condition was significantly worse than previously represented by AlliedSignal. Breed’s financial condition deteriorated and bankruptcy loomed. In 1999, Mr. Stewart advised Breed’s founders to restructure their personal financial affairs to avoid potential mismanagement claims by Breed’s creditors. Mr. Stewart also conducted an investigation that allegedly revealed that AlliedSignal had concealed critical financial information about SRS and seriously misrepresented SRS’s past and projected earnings. In the summer of 1999, Breed, represented by Mr. Stewart, sued AlliedSignal. In defense, AlliedSignal contended that Mr. Stewart concocted his discovery of alleged fraud to insulate Breed’s founders from mismanagement claims. ■

Several weeks after filing suit, Breed filed for bankruptcy protection. As part of Breed’s restructuring, the bankruptcy court authorized formation of the Trust to pursue the fraud claims against AlliedSig-nal on behalf of Breed’s creditors. In effect, Breed’s claims were transferred to the Trust. “After payment of fees and expenses, any recovery from Allied Signal by the Trust [would] be distributed to Breed’s creditors.” Allied Signal Recovery Trust v. Allied Signal, Inc., 298 F.3d 263, 266 n. 2 (3d Cir.2002). The Trust retained Mr. Stewart as its counsel.

AlliedSignal moved to disqualify Mr. Stewart. The motion stressed that Mr. Stewart had an extensive and lengthy relationship with Breed and its founders, the fraud claims were based on Mr. Stewart’s investigation, and the asset protection advice he gave to Breed’s founders created a conflict between him and the Trust. According to AlliedSignal, Mr. Stewart would be a key trial witness or, at a minimum, an impermissible “unsworn witness.’.’

The Trust opposed the motion. It argued that disqualification was limited to two situations: (1) where the lawyer is a necessary witness for his own client; or (2) where the attorney, when called as a witness for the other side, will provide testimony prejudicial to his client and the client either does not consent to waive the conflict or does consent and the court finds the consent unreasonable.

Although the Trust saw no conflict, it waived any potential conflict of interest that Mr. Stewart might have in représent-ing the Trust. Further, the Trust disavowed any need or intention to call Mr. Stewart to testify at trial. The Trust certainly did not act injudiciously; the trustee consulted with Trust beneficiaries, sophisticated business entities, and financial institutions represented by competent lawyers. They supported Mr. Stewart’s continued role as counsel, recognizing his expertise, detailed knowledge of the legal and factual issues in the case, and familiarity with Breed and its personnel. Nevertheless, the trial court disqualified Mr. Stewart. It concluded that Mr. Stewart was a necessary witness for AlliedSignal, was likely to be an “unsworn witness” at trial, and that any conflict waiver by the Trust was unreasonable.

Disqualification is an extraordinary remedy to be used sparingly. Therriault v. Berghmans, 788 So.2d 1119, 1120 (Fla. 2d DCA 2001); Arcara v. Philip M. Warren, P.A., 574 So.2d 325, 326 (Fla. 4th DCA 1991). Disqualification is an “immensely unusual remedy.” Whitener v. First Union Nat’l Bank of Fla., 901 So.2d 366, 370 (Fla. 5th DCA 2005). An order disqualifying counsel “ ‘must be tested against the standards imposed by [the] Rules of Professional Conduct.’ ” Tobkin v. Tobkin, 843 So.2d 961, 962 (Fla. 4th DCA 2003) (quoting City of Lauderdale Lakes, 654 So.2d at 646); accord Ray v. Stuckey, 491 So.2d 1211, 1213 (Fla. 1st DCA 1986); Cazares v. Church of Scientology of Cal., Inc., 429 So.2d 348, 349 (Fla. 5th DCA 1983). Measured against these standards, Mr. Stewart’s disqualification was inappropriate.

The Rules Regulating the Florida Bar provide:

Rule 4-3.7. Lawyer as witness
(a) When Lawyer May Testify. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case; or
(4) disqualification of the lawyer would work substantial hardship on the client.

Rule 4-3.7 prohibits a lawyer from serving as trial counsel for a client where he is likely to be a necessary witness for that client. “Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.” Rule 4-3.7 cmt. This dual role could create a conflict if the lawyer’s testimony is at odds with that of his client. Moreover, the dual role could prejudice the opposing party by bolstering the lawyer’s testimony for his client because it comes from an advocate. See Scott v. State, 717 So.2d 908, 910 (Fla.1998).

Rule 4-3.7 is inapplicable here, however; the rule contemplates the lawyer testifying on his Ghent’s behalf. The Trust conceded that Mr. Stewart was not a necessary witness and announced that it would not call him to testify. Nonetheless, the trial court disqualified Mr. Stewart because of potential prejudice to AlliedSig-nal if it called him to testify: “[T]he court’s focus is on prejudice to the opposing party who calls him as a witness, not on the prejudice to his own client contemplated by the analysis under Rule 4-3.7.” Neither the rule nor its comment supports disqualification on this basis.

As for AlliedSignal’s concern that Mr. Stewart’s prior representation of Breed’s founders creates a conflict with the Trust, we do not quarrel with the general rule that a lawyer may not represent a client if such representation will be directly or materially adverse to the interests of a current or former client. See Rules Regulating the Florida Bar 4-1.7, 4-1.9:

Rule 4-1.7. Conflict of interest; general rule
(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client; and
(2) each client consents after consultation.
Rule 4-1.9. Conflict of interest; former client
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation....

The Trust retained Mr. Stewart solely to pursue claims against AlliedSignal and waived any conflict of interest. See rule 4-1.7 cmt. consultation and consent (“A client may consent to representation notwithstanding a conflict.”). Any recovery would inure to the benefit of the Trust and, ultimately, to Breed’s creditors. Any potential claim against Breed’s founders was not a Trust asset; such a claim, if any, might belong to the reorganized Breed, an entity not represented by Mr. Stewart. Under the circumstances, therefore, it is not evident that any conflict existed. Assuming that Mr. Stewart provided asset protection planning for Breed’s founders, AlliedSignal failed to articulate how that advice created a conflict. It seems obvious that Breed’s founders and the Trust shared an interest in securing a meaningful recovery from AlliedSignal.

We discern that AlliedSignal’s central conflict concern is that Mr. Stewart will be a key witness for AlliedSignal, especially as to his investigation of AlliedSignal’s alleged fraud. On our record, we are not persuaded that this rationale warrants disqualification. We find Allstate Insurance Co. v. English, 588 So.2d 294 (Fla. 2d DCA 1991), instructive. In English, we quashed an order granting a motion to disqualify Allstate’s lawyer because he would be called to testify for the other side. Id. at 295. We observed that there had been no showing that any testimony the lawyer might give would be “ ‘sufficiently adverse to the factual assertions or account' of events offered on behalf of the client.’” Id. (quoting Ray, 491 So.2d at 1213 (following old rule 5-102(B) that lawyer who might be witness 'for opposing party may continue representation until prejudice to his own client is apparent)); see also Cazares, 429 So.2d at 350 (same).

Like Allstate’s counsel in English, Mr. Stewart was not going to testify for his own client. See Rule 4-3.7. But, because AlliedSignal could call Mr. Stewart to testify against his client, the trial court concluded that any conflict waiver given by the Trust was unreasonable because “[a] disinterested lawyer would not take the chance” that a jury could react negatively to Mr. Stewart’s extensive involvement with Breed. AlliedSignal, however, made no showing that Mr. Stewart would give any testimony “sufficiently adverse to the factual allegations or account of events offered on behalf of the [Trust].” To allow disqualification without such a showing invites mischief.

The requirement that a lawyer withdraw when he expects to be a witness was not intended to permit an opposing party to call him as a witness and disqualify him from serving as counsel. Id. at 295-96; Arcara, 574 So.2d at 326; Ray, 491 So.2d at 1214; Cazares, 429 So.2d at 350; see also Beavers v. Conner, 258 So.2d 330, 332-33 (Fla. 3d DCA 1972) (stating opposing counsel should not be permitted to force disassociation between counsel and client just by calling counsel as adverse witness); Hill v. Douglass, 248 So.2d 182, 183 (Fla. 1st DCA 1971), quashed on other grounds, 271 So.2d 1 (Fla.1972) (stating lawyer need not withdraw from case where he or she might be called to testify by adversary as this would create situation in which adversary could disassociate client’s chosen counsel).

AlliedSignal’s reliance on Live & Let Live, Inc. v. Carlsberg Mobile Home Properties, Ltd.'73, 388 So.2d 629 (Fla. 1st DCA 1980), is misplaced. That case addresses the former code of professional responsibility. See Fla. Bar Code of Prof. Resp. D.R. 5-102(B). In updating its professional conduct rules in 1987, Florida declined to adopt a proposed rule mandating automatic disqualification resulting from testimony for an opposing party.

AlliedSignal’s reference to Fleitman v. McPherson, 691 So.2d 37 (Fla. 1st DCA 1997), is also inapposite. Fleitman, decided after the adoption of the new rules, held that “when it is shown that the attorney will be an indispensable witness or when the attorney becomes a ‘central figure’ in the case, disqualification is appropriate.” Id. at 38 (citing City of Lauderdale Lakes, 654 So.2d at 646). However, the lawyers in Fleitman and City of Lauderdale Lakes were likely to be “featured witnesses” at trial for their own clients. Neither case, therefore, supports disqualification of Mr. Stewart because he might be a witness for AlliedSignal.

The trial court also found that Mr. Stewart should be disqualified as an “unsworn witness.” This theory has no express support in the Rules Regulating the Florida Bar or Florida case law. The trial court nevertheless relied on Marrero v. State, 478 So.2d 1155 (Fla. 3d DCA 1985), as a basis for disqualification. Marrero, however, involved a prosecutor whose improper questioning of a witness demonstrated his involvement in the underlying events and was an impermissible attempt at impeachment. Id. at 1157. That is not the case here. Further, the actual or perceived evils of the “unsworn witness” can be addressed by diligent supervision of trial proceedings by the trial judge. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608-09 (Fla.1994) (“Clearly, a trial judge has the inherent power to do those things necessary to enforce its orders, to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice.”); accord Moakley v. Smallwood, 826 So.2d 221, 224 (Fla.2002).

By disqualifying Mr. Stewart, the trial court departed from the essential requirements of law, causing irreparable harm to the Trust. We grant the petition for writ of certiorari and quash the order below.

Petition previously granted and the trial court order quashed.

CASANUEVA and CANADY, JJ., Concur.

      . The "unsworn witness” theory centers on the possibility that a lawyer with personal knowledge of the underlying facts could, through his demeanor or questioning of witnesses, improperly suggest the lawyer's personal views on a matter, thus providing the equivalent of unsworn testimony in the case.

      . We question AlliedSignal's standing to assert this actual or perceived conflict. Allied-Signal was not Mr. Stewart's current or former client as contemplated by rule 4-1.7 or rule 4-1.9. If anyone had an objection to Mr. Stewart's representation, it would have been Breed's creditors.

      . If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. (Emphasis supplied.)
      The concern of rule D.R. 5-102(B) was that trial counsel "might be inhibited from attacking his own credibility or arguing to the fact-finder the lack of credibility of his testimony, thus affecting his ability to properly represent iáis client.” Ray, 491 So.2d at 1213. Whether a lawyer who is likely to be called to testify for an adverse party should decline further representation of his client can be addressed under the framework of rule 4-1.7 and rule 4-1.9. See rule 4-3.7, cmt.

      . The Code of Professional Responsibility was replaced by the Rules of Professional Conduct, effective January 1, 1987. The Fla. Bar Re Rules Regulating the Fla. Bar, 494 So.2d 977 (Fla.), opinion corrected by 507 So.2d 1366 (Fla.1986).


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Gilbert BECKHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2242.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2006.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Gilbert Beckham challenges his judgment and sentence on charges of trafficking in hydrocodone and possession of marijuana with intent to sell. He argues that the trial court erred in denying his motion to suppress. We agree and reverse.

On December 18, 2003, an officer with the Clearwater Police Department noticed Beckham and two other individuals in a stall at a car wash located in a neighborhood known for its drug activity. The officer had previously been assigned to the bicycle patrol in this area as part of the Homeless Intervention Project and, during the course of his duties, had encountered Beckham in the neighborhood on numerous occasions. Although none of these prior encounters involved any criminal investigation, the officer had come to know Beckham by name. On this date, the officer was a passenger in a patrol car that was being driven by an officer trainee.

At the suppression hearing, the officer testified that prior to this encounter, he had received word from two transients he knew from the neighborhood that Beck-ham was selling marijuana. However, the officer did not say specifically when he received this information, whether the transients explained how they acquired this knowledge, or if the transients said when Beckham had been involved in this alleged drug activity. Additionally, a fellow officer had advised him during the week prior to this incident that a third officer had arrested Beckham on a marijuana-related charge. The officer did not testify as to when the arrest or the events leading up to that arrest had occurred.

The officer testified further at the hearing that as he and the officer trainee drove past the car wash, his attention was attracted to Beckham and two other individuals standing by a bicycle in a ear wash stall. He noted that Beckham’s pants were falling down and that the “upper quadrant” of his buttocks was exposed. As the patrol car pulled into the ear wash parking lot, the other two individuals began to walk away to the south and Beck-ham began to ride away on his bicycle heading north. The trainee called out to Beckham, who either did not hear him or ignored him. The trainee then called to him by name, and Beckham stopped his bicycle. As the officers approached, they observed that Beckham’s pants were obviously too large for him, that he was not wearing a belt or underwear, and that his zipper was down but his genitals were not exposed. As they approached Beckham, they told him to pull up his pants. He did so, but they fell down again.

Upon reaching Beckham, the officers noted that he was very nervous and was reaching into his pockets. The officer trainee asked Beckham for his consent to perform a pat-down search. Beckham agreed but limited the search to a pat-down by specifically stating that they could not go into his pockets. As the officer performed the pat-down, he felt something in Beckham’s pocket. The officer testified that, since the pants were so large, the pockets stood open and he could see directly down into the pocket without reaching in or opening it. In plain view he observed what he believed to be marijuana. The officer retrieved the marijuana, arrested Beckham, and after a further search, found additional contraband.

The trial court’s detailed order denying the motion to suppress determined that the encounter was an investigatory stop, not a citizen encounter, and that the stop was supported by reasonable suspicion. The trial court reasoned that the prior information provided to the arresting officer, together with the “observations and circumstances” noted by the officers’ testimony, provided the officers with reasonable suspicion to justify the investigatory stop. We disagree.

We review the trial court’s application of the law to the facts in the denial of a motion to suppress de novo. Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999). To justify an investigatory stop, the State must show that the officers possessed a “well-founded, articulable suspicion of criminal activity.” Popple v. State, 626 So.2d 185, 186 (Fla.1993). The issue before us is whether these facts demonstrate such a suspicion.

Arguably, the facts of this case presented the officers with two potential alternative bases for suspecting criminal activity. A number of facts suggested that Beckham, at some unspecified time, had been involved in illegal drug activity, while other facts regarding Beckham’s appearance suggested that Beckham might have been guilty of some type of criminal exposure violation. However, based on the totality of the circumstances as shown by the evidence at the suppression hearing, we conclude that neither theory, either individually or together, provided the officers with a well-founded suspicion of criminal activity sufficient to justify an investigatory stop. Looking at the totality of the circumstances, Beckham’s appearance did not provide any additional basis for a suspicion that he was involved in drug activity, and the information regarding his prior drug activity did not provide any support for .a suspicion that he was committing some type of indecency offense.

We turn first to the potential theory that the officers reasonably suspected Beckham of illegal drug activity. In support of that theory, the trial court determined that the two unnamed persons who told the officer that Beckham had been selling marijuana were citizen informants, as to whom no corroboration was needed to assume their reliability. See Aguilar v. State, 700 So.2d 58, 59 (Fla. 4th DCA 1997). The trial court concluded that their tip, together with Beckham’s appearance, provided the officers with the reasonable suspicion to stop and detain Beckham. Although we agree that the two individuals did meet the definition of citizen informants, we disagree that the nature of the tip was sufficient to justify the detention.

In other citizen informant cases, in addition to providing information alleging illegal activity, the tips included some time frame for the citizen informants’ observations and the basis of the citizen informants’ knowledge. See State v. Maynard, 783 So.2d 226, 227 (Fla.2001) (involving tip from suspect’s mother that suspect had “just left” a specific address carrying a machine gun in a green backpack); Aguilar, 700 So.2d 58 (involving teenager’s tip that he saw a man with a gun; teenager remained with police and identified man); State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997) (involving tip from McDonald’s restaurant manager that customer currently at the drive-through window appeared intoxicated and smelled of alcohol). In this case, the officer testified only that the two citizen informants had previously advised him that Beckham had been selling marijuana. When the sale of marijuana had occurred and how these two citizen informants knew of this activity was not included in the testimony provided to the trial court.

This court has stated that “[t]he use of stale information will not create the founded suspicion necessary to support” an investigatory stop. Jain v. State, 577 So.2d 1002, 1003 (Fla. 2d DCA 1991). Here, the State presented evidence that “within a week or two” prior to the officers’ contact with Beckham they had been told that he had been selling drugs. While this evidence established a time frame for when the officers acquired their information, it did not establish the time frame during which Beckham had been engaged in drug dealing. Further, nothing in our record reflects that the information was not stale. Accordingly, although the two sources may have qualified as citizen informants whose reliability did not require further corroboration, at the time of the stop the information did not give the officers a basis to support a reasonable suspicion that Beckham had committed, was committing, or was about to commit a crime. At best, the tip arguably provided the officers with a belief that Beckham, at some previous, unknown time, had been involved in marijuana sales.

Likewise, the information regarding the prior arrest of Beckham on marijuana charges was insufficient. There is nothing in the record to show the time frame of the prior arrest. Additionally, a suspect’s prior arrest on drug charges does not provide a well-founded suspicion of current illegal drug activity; it merely provides the officers with a hunch. See King v. State, 521 So.2d 334 (Fla. 4th DCA 1988).

Similarly, the fact that three people are standing in a car wash stall in a neighborhood known for its drug transactions may supply the officers with a “hunch” but not a reasonable suspicion. See Hills v. State, 629 So.2d 152, 156 (Fla. 1st DCA 1993) (“[Bjehavior, which may be suspicious but not demonstrably or conceivably criminal, is not sufficient to establish a founded suspicion, even in a high crime area.”); see also Walker v. State, 846 So.2d 643, 645 (Fla. 2d DCA 2003) (“A bare suspicion or mere ‘hunch’ that criminal activity may be occurring is not sufficient.”). The officers saw no exchange of money or drugs and saw nothing passing from one individual to another. See Burnett v. State, 644 So.2d 152 (Fla. 2d DCA 1994). The officer trainee acknowledged that he had stated in his deposition testimony that he observed the individuals huddled together and that it looked like a drug transaction, but he gave no other information as to why it looked like a drug transaction. Further, he added that the other officer had “pin-pointed it out.”

Furthermore, the fact that the three individuals left the area going in separate directions did not elevate the hunch to a reasonable suspicion. See Wilson v. State, 707 So.2d 893 (Fla. 2d DCA 1998).

Even when taken together, all of these circumstances, along with the belief that Beckham previously had been involved in drug activity, fail to justify the stop. See King, 521 So.2d 334 (concluding that even if the site was a high crime area that was near two known drug houses, officer did not have a founded suspicion to stop vehicle occupied by two white males that was approached by a black male, who was known to the officer to be a drug dealer, and a Mexican male, where the black male walked away quickly as the officers approached). We conclude that the officers did not have a “well-founded, articulable suspicion” that Beckham was involved in a drug transaction at the time of the stop. See Popple, 626 So.2d at 186.

Finally, the circumstances regarding Beckham’s appearance did not justify the stop. The officers did not suggest that Beckham’s appearance was a violation of any law, and they did not charge him with any offense related to the partial exposure of his buttocks. The trial court’s order does not specifically mention Beckham’s appearance as a basis for the stop. Rather, the trial court’s order determined that the officers had reasonable suspicion to stop and detain Beckham but failed to specify whether the suspected criminal activity was drug-related or due to any possible charges relating to his appearance.

The testimony at the suppression hearing was inconsistent and vague as to the role Beckham’s appearance and apparent exposure of his buttocks played in the stop. One of the officers testified that the basis for the stop was “twofold,” i.e., it consisted of the prior information in addition to Beckham’s appearance. Later during the hearing, however, he testified that he would have stopped Beckham based on his appearance alone.

Our review of the facts related to Beck-ham’s appearance leads us to conclude that the officers lacked a well-founded suspicion of criminal activity with regard to Beck-ham’s exposure of his buttocks. These facts would not justify any suspicion of lewd or lascivious behavior. See Goodmakers v. State, 450 So.2d 888, 891 (Fla. 2d DCA 1984) (“[I]n order for there to be a violation of [the indecent exposure statute], there must be, coupled with mere nudity, ‘lascivious’ exposition or exhibition of the defendant’s sexual organs.”). Further, the conduct would not qualify as disorderly conduct pursuant to section 877.03, Florida Statutes (2003), as there was no evidence that Beckham’s partial exposure of his buttocks was an act of such a nature as “to corrupt the public morals, or outrage the sense of public decency.” Considering the totality of the circumstances, we conclude that Beckham’s partial exposure of his buttocks did not provide the officers a reasonable suspicion to believe that criminal activity was occurring.

Because the evidence reflects that the officers lacked the required well-founded suspicion to stop Beckham, we conclude that the trial court erred in denying the motion to suppress.

Reversed.

SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . The trial court's conclusion that this was an investigatory stop is supported by the factual findings. Upon Beckham's observing the patrol car, he mounted his bicycle and began to ride away. After pulling the patrol car onto the car wash property, the officers exited the vehicle and the trainee called to Beckham. Beckham did not respond and continued to ride away. The trainee then called to him a second time, using his name. It is at this point that Beckham stopped. Although the trial court did not specifically discuss the testimony that Beckham gave at the suppression hearing, his testimony also is consistent with the court’s conclusion that the stop was an investigatory stop. Beckham testified that while he was speaking with someone, the officers pulled up in their car and directed him to “hold it right there.” The officers acknowledged that they called out to Beck-ham, but they did not provide any detail as to what they stated.
      The State has not challenged the trial court’s conclusion by cross-appeal. The facts found by the trial court support a conclusion that Beckham stopped in acquiescence to the apparent authority of these uniformed officers exiting a marked patrol car. Although he did ignore the first call, since they continued to call and used his name, the trial court was justified in determining this was an investigatory stop.

      . The trial court's order also determined that the consent to perform the pat-down search was valid and that once the officer saw the marijuana in plain view, the resulting arrest and search were proper. Since we conclude that the officers lacked the reasonable suspicion to make the initial stop and that this was not a consensual encounter, we do not review this additional finding.


author: JOHNSON, Justice.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, in the Interest of D.F. v. L.T., Jr. State of Louisiana, Department of Social Services, in the Interest of J.T. v. L.T., Jr.
    No. 2005-CJ-1965.
    Supreme Court of Louisiana.
    July 6, 2006.
    Paul D. Connick, Jr., District Attorney, Joseph R. McMahon, Jr., Lekita G. Robertson, Assistant District Attorneys, for Applicant.

      Beevers & Beevers, Raylyn R. Beevers, Wiley J. Beevers, Steven J. Mauterer, Gretna, for Respondent.
   JOHNSON, Justice.

hWe granted this writ application to address whether military allowances for housing and subsidies must be included in gross income for the calculation of child support. The State of Louisiana, Department of Social Services (hereinafter referred to as “State”), filed this writ application to review the lower courts’ decisions to exclude the father’s military allowances for housing and subsistence from his “gross income” for the purpose of calculating his child support obligation to his two minor | ¡¡children. For the following reasons, we reverse and remand the case to the trial court to reassess the father’s child support obligation and include his military allowances in his gross income.

FACTS AND PROCEDURAL HISTORY

This matter involves a United States Navy officer, who fathered six children, but only two minor children born of different women are at issue. Officer Legredis Taylor serves in the Navy as a non-commissioned officer, Grade E-6. He earns a monthly base salary of $2,763.30 and also enjoys the benefits of basic allowance housing (“BAH”) in the amount of $995.00 a month in addition to basic allowance subsidies (“BAS”) in the amount. of $254.46. Legredis Taylor (hereinafter referred to as “Taylor”) was determined by the trial courts to be the biological father of D.F., whose mother is Floria Francois, and J.T., whose mother is Charissa Williams. Both mothers sought child support through the State of Louisiana, Department of Social Services against Taylor. Both child support cases were heard before a hearing officer, who determined Taylor’s obligation by imputing his military allowances (BAH and |sBAS) into his gross income for the purpose of calculating his child support obligations. In D.F.’s ease, the hearing officer determined that Taylor should pay $503, which was an additional $150 áfter his military allowances were included. In J.T.’s case, the hearing officer determined that Taylor was obligated to pay $450.19 per month, which was approximately $174 more after including the allowances. Taylor contested the rulings, which imputed his military allowances (housing and subsistence) to his salary in determining his child support obligation.

Subsequently, the matters were heard on November 8, 2004, by the trial court judge, who determined that the BAH and BAS should not be included as income when calculating child support. Aecord-ing to the transcript of the hearing, the trial court held that the basic allowance for subsistence and housing should not be used for the purpose of calculating child support. The trial court noted that the military allowances (BAS and BAH), as defined by the United States Military, are “slightly different then a per diem allowance.” The trial court also noted that the military allowances are not taxed by the Internal Revenue Services, and .therefore, these allowances should not be imputed as income for the calculation of child support. The trial court found that this falls within the ambit of LSA-R.S. 9:315, which provides that gross income does not encompass per diem allowances, which are also not subject to federal income tax under the Internal Revenue Code. The State appealed both cases.

[/These appeals were consolidated as they reflected identical issues of law. See, LSA-C.C.P. art. 1561. The Fifth Circuit Court of Appeal, in a 2-1 split vote, affirmed the trial court ruling, noting that there is “no specific statutory provision governing this particular case,” the trial court “correctly paralleled these military allowances to per diem allowances, which are specifically excluded from gross income. Therefore, ... these military allowances are not to be included in Taylor’s gross income calculation ...” State, Dept. Of Social Services, ex rel. D.F. v. L.T., 04-1455, 04-1456 (La.App. 5 Cir. 5/31/05) 903 So.2d 657. Judge Rothschild dissented and opined that:

Under the clear terms of LSA-R.S. 9:315(C)(4)(a), the definition of gross income includes the. disputed allowances, as these allowances constitute income from “any source.” Further, as stated in La. R.S. 9:315(C)(4)(b), where expense reimbursements received by a parent are significant and reduce the parent’s personal living expense they are considered for purposes of child support calculations to be part of the parent’s gross income. The fact that these allowances are paid by the military branch of federal government and not subject to income tax does not exclude them from the definition of gross income under the applicable child support guidelines.
In fact, in the calculation of child support, Louisiana courts have imputed income to a parent who eliminated housing costs by living in a new wife’s home. Thus, the benefit a parent receives in the form of reduced housing expenses have been determined as constituting income. See, Shaw v. Shaw, 30,613 (La.App. 2 Cir. 6/24/98), 714 So.2d 906, writs denied, 98-2414, 98-2426 (La.11/20/98), 729 So.2d 556, 558.
The trial court correctly recognized that the housing and subsistence allowances paid, to Mr. Taylor are distinguishable from .a per diem allowance which is specifically excluded from gross income pursuant to La. R.S. 9:315(C)(4)(d)(ii). However, in my view, the trial court erred in relying on the federal tax code to exclude this income where there are specific provisions in Louisiana governing the calculation of child support which provides otherwise. For these reasons, I would reverse |Bthe judgment of the trial court and reinstate the recommendation of the hearing officer in setting the child support of defendant, Legredis Taylor, Jr.

The State applied for a rehearing, which the court of appeal refused. Upon application of the State, this Court granted a writ. State, Dept. Of Social Services, ex rel. D.F. v. L.T., 05-1965 (La.2/10/06), 920 So.2d 863.

DISCUSSION

The sole issue before this Court is whether the military allowances for housing and subsidies are to be included in Taylor’s gross income for the calculation of child support to his two minor children. We note that this case is res nova, an issue of first impression in Louisiana, and thus, it is appropriate to look to the law of other jurisdictions for guidance after reviewing the statutory law of Louisiana.

Before reviewing the persuasive authority of other jurisdictions, we note that LSA-R.S. 9:315 et seq., provides the guidelines for the determination of child support, which relies on the combined adjusted monthly gross income of both parents. According to LSA-R.S. 9:315(A), child support is a continuous obligation of both parents, whose current income the child is entitled to share, as the child should not be the economic victim of a divorce or an out-of-wedlock birth. These guidelines are mandates applicable to both military personnel and civilians. Further, the trial court’s discretion in setting the amount of child support is structured and limited. James v. James, 34,567 (La.App. 2 Cir. 4/6/01), 785 So.2d 193; Voorhies v. Voorhies, 96-342 (La.App. 3 Cir. 10/9/96), 688 So.2d 1158. This obligation must be administered and fairly apportioned between parents in their mutual financial responsibility for their |Bchildren; toward that end, guidelines balance the needs of children with the means available to parents. See, LSA-R.S. 9:315 et seq.

We also note that the standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Reeves v. Reeves, 36,259 (La.App. 2 Cir.2002), 823 So.2d 1023, 1027. With this standard in mind, we can proceed to address the State’s argument.

Definition of “gross income” and Legislative Intent

First, the State argues that the lower courts erred in determining that Taylor’s BAH and BAS constituted income for the purpose of calculating child support. The State argues that the lower courts misinterpreted LSA-R.S. 9:315(C)(4)(b), which is presently LSA-R.S. 9:315(C)(3)(b), as military allowances fall squarely within the parameters of “gross income” as defined in the statute.

LSA-R.S. 9:315(0(4) states, in pertinent part, that:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, ... ' and spousal support received from a preexisting spousal support obligation ...
(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, 17if the reimbursements or payments are significant and reduce the parent’s personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals ...

(Emphasis added).

In contrast, Taylor contends that the statute is clear and unambiguous. Taylor points out that LSA-R.S. 9:315 contains specific enumerated sources of income, and none of these sources includes military allowances. Taylor submits that the lower courts’ rulings are clearly supported by the legislative intent. Accordingly, Taylor asserts that BAH and BAS should not be included as income when calculating child support under Louisiana law. We disagree.

In reviewing a statute, we must determine whether the language of the statute is clear or ambiguous. Also, we must determine what the legislature intended when promulgating the statute. Here, in analyzing LSA-R.S. 9:315(C)(4), we find that the statute does not limit income merely to the type of compensation listed, but instead, through the use.of the words “but are not limited to ... free housing or reimbursed meals,” includes any compensation for services, thereby including the military allowances at issue before this Court. LSA-R.S. 9:315 provides examples of what is not considered “gross income” and does not mention BAH and BAS. Thus, as noted in Judge Rothschild’s dissent, the fact that BAH and BAS are not included within the examples provided is not dispositive of the issue of whether they are income under Louisiana law. Louisiana courts have determined that the benefit a parent receives in the form of reduced housing expenses is income. See, Shaw v. Shaw, 30,613 (La.App. 2 Cir. 6/24/98), 714 So.2d 906, writs denied, 98-2414, 98-2426 (La.11/20/98), 729 So.2d 556, 558 In Shaw, the former husband sought a modification of child custody and child support. The court noted that when the former husband |shad married a new wife, hé moved out of his home and into the home of his new wife thereby eliminating his housing expenses. In that instance, the court found that because his housing expense was reduced, the court was justified in imputing $300 per month to his income. In the case sub judice, there is no dispute that Taylor financially benefitted from the military granting allowances which reimbursed his housing and living expenses. Thus, the BAH and the BAS should be imputed per month to his income.

Military Allowances dissimilar to Per Diem Allowances (Both NON TAXABLE)

Next, the State argues that the lower court erroneously concluded that because the Internal Revenue Code does not tax BAQ or VHA allowance as income, then the military allowances should not be considered as income to him in computing child support. Taylor points out that LSA-R.S. 9:315(C)(4)(d)(ii) specifically spells out that the definition of “gross income” does not include “per diem allowances which are not subject to federal income taxation under the provisions of the Internal Revenue Code.” We agree with Taylor that the definition of “gross ineome” excludes “per diem allowances.” We also agree that both military allowances and per diem allowances are tax exempt. However, the fact that the Internal Revenue Code excludes from gross income qualified military benefits, of which military allowances are a part, pursuant to 26 U.S.C.A. § 134, is of little weight in the determination of whether BAH and BAS should be included as income in calculating child support. The purposes underlying the two calculations are different. The Internal Revenue Code is concerned with reaching an amount of taxable income. Particularly, 26 |flU.S.C.A. § 134, provides in pertinent part, that: “qualified military benefit”, which means any allowance or in-kind benefit, was excludable from gross income. 134(1)(B). While on the other hand, Louisiana law is concerned with calculating the amount of income of both parents in order to determine the amount each parent can pay for the support of their child. See LSA-R.S. 9:315, et seq. Furthermore, if the Louisiana legislature intended its definition of income for child support purposes to parallel the calculation of income for tax purposes, then the language of the child support statutes or guidelines would have reflected this. However, it does not. Noteworthy is the Code of Federal Regulation, which provides in 32 C.F.R. § 733.3 that under the child support guidelines, gross pay includes not only the basic salary but the basic allowance housing; however the basic allowance for subsistence is excluded. Similarly, the Navy regulations, outlined in BUPERSINST 1610.10 (22 August 2002), sets forth that gross pay includes the BAH, yet excludes the BAS. However persuasive, this regulation is not controlling in determining the military allowances inclusion in child support calculations as reasoned by Alexander v. Armstrong, 415 Pa.Super. 263, 609 A.2d 183 (1992).

Jurisprudence

We note that there is. no statutory provision or .case law on point that would resolve this matter. Therefore, we recognized the precedent set forth in other jurisdictions. The United States Supreme Court in Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987), held that the inability to subject certain federal benefits to garnishment does not prohibit a state court from utilizing them in child support proceedings. In Rose, the Court was faced with the issue of whether a veteran |incould be held in contempt in a state court for failure to pay child support when his only income was from veteran’s benefits. The Court stated that “[wjhile [veteran’s benefits] are exempt from garnishment or attachment while in the hands of the Administrator, we are not persuaded that once these funds are delivered to the veteran a state court cannot require that the veteran use them to satisfy an order of child support.” Id. at 637, 107 S.Ct. at 2039.

In that case, the inclusion of appellant’s BAQ and VHA payments as part of his income did not conflict with the federal law governing enforcement of support obligations. While the trial court did attach appellant’s military wages in order to ensure his payment of $400.00 child support, such payment was made directly from appellant’s monthly base salary of $1,121.40. Moreover, as the Supreme Court held in Rose, once appellánt received his BAQ and VHA, a state court can order him to use them to satisfy his child support obligations.

In Hautala v. Hautala, 417 N.W.2d 879 (1988), Mr. Hautula, a Master Sergeant in the United States Air Force, contended that the trial court erred in considering BAQ and VHA as income because it was not included in the specifically enumerated sources of income provided by the code and because it is not garnishable under federal law. The Supreme Court of South Dakota affirmed, holding that the definition of “income” provided in the support statutes was not exclusive as evidenced by the broad wording of the statute and the use of the word “includes.” Furthermore, the Court, citing Rose v. Rose, swpra, held that the fact that BAQ and VHA are not garnishable does not preclude their being income. Hautala, supra, 417 N.W.2d at 881.

In Peterson v. Peterson, 98 N.M. 744, 652 P.2d 1195 (1982), Mr. Peterson, a Technical Sergeant in the United States Air Force, appealed from an order increasing his child support payments on the basis that his income increased due to his receiving BAQ, VHA and BAS. Sgt. Peterson contended that his military allowances were not income because they were not subject to garnishment under federal law. The Supreme Court of New Mexico, focusing only on 42 U.S.C.A. § 659 and the legislative history of that section, held that military allowances for off-base housing are “payments under the Federal programs in which entitlement is based in employment .... [and] [therefore .... are proper sources of income that a state trial court can consider in determining whether there has been a financial change of circumstances sufficient to warrant an increase of child support payments.” Peterson v. Peterson, supra, 652 P.2d at 1198.

Courts in Pennsylvania, Ohio and Minnesota have determined that military allowances are a species of remuneration subject to child support payments. (See, Alexander v. Armstrong (1992), 415 Pa.Super. 263, 609 A.2d 183; Merkel v. Merkel (1988), 51 Ohio App.3d 110, 554 N.E.2d 1346; Jackson v. Jackson (Minn.Ct.App.1987), 403 N.W.2d 248.)

In supporting the inclusion of BAH and BAS within income for the purpose of calculating child support, we note that Connors, Resolving Child Support Issues Beyond the Scope of AR 608-99, 132 Mil.L.Rev. 67, 78 (1991) provides that BAQ BAH, VHA, and BAS should be included when calculating a military person’s total income because these in-kind benefits received by the service person increase his/ her income. The article provides that a “standard of living allowance (SOLA)” should h?be calculated for the purpose of child support as “it allows a child to benefit from the higher living standard usually enjoyed by a noncustodial parent.” Id at 77. The article addresses the issue before us as follows:

In general, all of a soldier’s ... pay and allowances should be considered as income for the purposes of setting the [child] support obligation. (Citation footnotes omitted) Many soldiers live in government accommodations and eat in the mess hall for free. This “in kind” income ... may justify an upward adjustment in support owed. Moreover, Basic Allowance for Quarters (BAQ), Basic Allowance for Subsistence (BAS) ... and military ... payments can constitute large portions of a soldier’s ... total income. These items, however, are not taxable. If the state guidelines are based on gross pay, ... the soldier’s income should be adjusted upward to account for the increased value of nontaxable income.

As determined above, neither Louisiana law nor federal law prohibits including BAH and BAS within the definition of gross income when calculating income for child support purposes. Furthermore, appellant has not cited any cases, nor has our own research discovered- any case law which has determined BAH and BHS not to be income.

Finally, relevant to our analysis is the fact that the Louisiana Child Support Guidelines, LSA-R.S. 9:315 et seq., are based-on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Explanatory Comment-1989, Pa.R.Civ.P.1910.16-5. If D.F. and J.T. were living with Taylor’s new family, they would share in the benefit from the allowances Taylor received from the Navy for housing and subsidies. However, because D.F. and J.T. do not live with Taylor or Taylor’s family, they do not receive any benefit from the allowances. Accordingly, in keeping with the guidelines, we must include in Taylor’s income his BAH and BAS when calculating 113child support. Thus, we find that the lower courts erred in their rulings. We reverse the lower courts’ judgments and remand the case to the trial court to reassess the father’s child support obligation.

REVERSED and REMANDED.

KNOLL, Justice, concurs in the result.

      . Basic Allowance Housing ''BAH” is an additional sum, other than the salary, paid to a member of a uniformed service/qualified military person, who resides outside of the military quarters, paid monthly to supplement his housing expenses. See, 37 U.S.C.A. § 403. The rates are paid according to the member's grade level and "the costs of adequate housing for civilians with comparable income levels.” Id. Basic Allowance Subsistence "BAS” is paid to a qualified military person to supplement food expenses incurred while living "off base.” 37 U.S.C.A. § 402a.

      . On September 8, 2004, the trial court issued a judgment of paternity finding that Taylor was the biological father of D.F. Thereafter, the record shows that Taylor formally acknowledged his child. The record is silent as to when the court determined that Taylor was the biological father of J.T.

      . Although both matters were filed separately and assigned to different divisions, i.e. D.F.'s case (04-NS-447) was assigned to Division "B" and J.T.’s case (04-NS-1055) was assigned to Division "A,” hearing officer Samuel Stephens adjudged both cases.

      . The record demonstrates that the Judge Andrea Janzen consolidated the two cases as both cases presented the same issue and ruled accordingly.

      . LSA-C.C.P. art. 1561 provides that:
      A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate.

      . Senate Bill No. 123 (Regular Session 2006) amends LSA-R.S.9:315(C)(3)(a) to read:
      (3) "Gross income” means:
      (a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, ... workers' compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, ... and spousal support received from a preexisting spousal support obligation;
      Senator Lentini and Representatives Ansardi and Bowler introduced this bill, which purports to broaden the definition of "gross income” to include BAH and BAS for the purpose of calculating child support. This bill was unanimously passed in the Senate on April 10, 2006. On June 5, 2006, the House of Representatives passed the bill with no objections, and on June 7, 2006, the bill was sent to the Governor for consideration.

      . "BAQ” means "basic allowances for quarters,” and "VHA" means "variable housing allowances.”


author: PER CURIAM.

text:
    In re Mitchell Reid LANDRY.
    No. 2005-B-1871.
    Supreme Court of Louisiana.
    July 6, 2006.

      Charles B. Plattsmier, Baton Rouge, Eric K Barefield, Metairie, for Applicant.
    Stanley, Flanagan & Reuter, Richard Stanley, Vicki A. Elmer, New Orleans; Mitchell Reid Landry, Mandeville, for Respondent.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Mitchell Reid Landry, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts are largely undisputed. Respondent was admitted to the Louisiana bar in April 1996. In March 1997, respondent accepted a position as a title attorney with Authentic Title, Ltd.

In July 1997, respondent acted as the closing attorney for a transaction involving Walter Wallendorf (“Walter”), who wished to refinance his home. Because Walter’s wife, Patsy Wallendorf (“Patsy”), had died several months earlier, respondent determined that it was necessary to open a succession to complete the refinancing. Walter informed respondent that he and Patsy had no children and no property other than the home and its furnishings. Walter also told respondent that “there was'no will” when Patsy died. When respondent asked Walter for the names of witnesses who could verify these facts, Walter informed respondent that he and Patsy had not socialized much and that he could not think of any witnesses who could provide the information.

12Thereafter, respondent prepared an affidavit of death and heirship based solely on the information provided by Walter. The affidavit stated that Patsy died intestate. Walter signed the affidavit and respondent notarized it. A second affidavit was executed by-Kelly Jones and Heather St. Amant, two notarial secretaries employed by Authentic Title, repeating the information contained in Walter’s affidavit. These secretaries swore in the affidavit that they were “well acquainted” with Patsy and knew that she had died intestate. Respondent reviewed the Jones/St. Am-ant affidavit and notarized it. The affidavits were included with a petition for possession signed by respondent and filed in the matter entitled Succession of Patsy Ruth Wallendorf, No. 513-162 on the docket of the 24th Judicial District Court for the Parish of Jefferson. In August 1997, the court rendered a judgment of possession in favor of Walter.

Approximately one year later, respondent learned that Patsy had in fact died testate. In 1994, Patsy had executed a will leaving all of her assets, including the Wallendorf home, to Michael Bradford Walker and Jennifer Brooke Walker (“Michael and Jennifer”), the children of Shirley Walker (“Shirley”). Walter apparently believed that his wife had rescinded that will shortly before her death in 1997, leaving her without a will. Subsequently, Shirley retained counsel and brought an action to annul the 1997 judgmént of possession. Walter represented himself in the litigation. At the conclusion of the proceeding, the court set aside the earlier judgment of possession in Walter’s favor and appointed Shirley as the testamentary executrix of Patsy’s succession.

In July 2000, Michael and Jennifer filed a civil suit against respondent and others. During the course of the litigation, Heather St. Amant testified that neither she nor Ms. Jones knew Patsy at the time they executed the affidavit attesting that they were “well acquainted” with Patsy and knew she had died intestate. Ms. St. 1 sAmant testified that she signed the affidavit, even though she did not know Patsy, because she was told to do so. In October 2001, Michael and Jennifer settled their suit for $70,000, which sum was paid by Authentic Title.

DISCIPLINARY PROCEEDINGS

Following its investigation of a complaint filed by Shirley, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rules 8.3(a)(1) (knowingly making a false statement of fact or law to a tribunal), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent answered the formal charges, admitting most of the factual allegations and admitting that he violated the cited Rules of Professional Conduct “by virtue of his submission of affidavits in which the affiants declared personal knowledge of facts that they did not know, although in good faith believed to be true.”

This matter then proceeded to a formal hearing on the merits, at which respondent and Shirley Walker testified. In addition, respondent offered testimony, l4both in person and by letter and affidavit, attesting to his good character and reputation.

Hearing Committee Recommendation

After considering this matter, the hearing committee made factual findings as follows:

Respondent relied upon Walter’s representations that he and Patsy had no children and had no property other than their residence and its furnishings and contents. Respondent also relied upon Walter’s representations that Patsy did not execute a will and died intestate. When respondent questioned Walter regarding witnesses who could verify these facts, Walter advised respondent that he could not think of anyone who could execute the appropriate affidavits of death and heirship. Assuming Walter’s representations were accurate, respondent prepared an affidavit of death and heirship for Walter’s signature. Respondent or another employee of Authentic Title prepared a second affidavit wherein employees of Authentic Title alleged to have personal knowledge of the facts that Walter represented to respondent. Respondent notarized the second affidavit even though he knew or should have known the employees did not have the requisite personal knowledge to execute the affidavit. When Patsy’s succession was filed with the court, Walter was recognized as the sole heir and placed in possession of all of the property in the succession. Some two years later,- Shirley brought an action to annul the judgment of possession in favor of Walter. Shirley represented to the court that Patsy had died testate and Shirley’s children were the proper heirs to the succession. An ancillary litigation was filed seeking recovery against respondent and others for the errors outlined above. That litigation was settled in October 2001, giving the injured parties $70,000 in settlement of their claim.

IsBased on these factual findings and respondent’s stipulations in his answer, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee found mitigating factors to be present, namely “the relative inexperience of the respondent, the respondent’s reliance upon the statements of his client, and the lack of any motive to do harm to any party.” The committee, determined that instead of taking the time to investigaté Walter’s statements, respondent gave into pressure to expedite the refinancing process. The committee further determined that in doing so, respondent made an error which was not motivated by financial gain and was probably made because respondent believed he was expediting a matter that was both truthful and accurate. Respondent’s error caused financial loss, which has been resolved by the courts.

The committee was impressed by the character witness and character affidavits submitted-by respondent for consideration. The committee also felt that respondent’s error was “one that all people in all professions are confronted with at the beginning of their careers.”

Under these circumstances, the committee recommended that respondent be publicly reprimanded. The ODC filed an objection to the hearing committee’s recommendation.

Ruling of the Disciplinary Board

After review, the disciplinary board determined that the hearing committee’s factual findings were not manifestly erroneous. Furthermore, the board determined the committee properly found that respondent had violated the Rules of Professional Conduct as alleged in the formal charges.

The board found that respondent’s conduct was negligent as to the 8.4(c) and (d) violations; however, his violation of Rule 3.3(a)(1) was knowing. It determined Rhis conduct caused harm to both Shirley’s children and Walter, because Shirley’s children were required to file a lawsuit to have the appropriate will recognized by the court, and Walter was forced to defend himself in the proceeding. It concluded the lawsuit might have been avoided had respondent investigated Patsy’s succession issues. Nevertheless, it recognized Shirley’s children received $70,000 in settlement of their malpractice claim against respondent and others.

The board determined that the baseline sanction in this matter is a public reprimand. It found no aggravating factors present. In mitigation, it noted the following: absence of a dishonest or selfish motive, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward.the proceedings, inexperience in the practice of law (admitted 1996), character or reputation, and remorse.

Finding that the case law supports a public reprimand for the misconduct at issue, the board ordered that respondent be publicly reprimanded. It further ordered that he be assessed with all costs and expenses of these proceedings.

Three members of the disciplinary board dissented on the issue of an appropriate sanction. Relying on In re: Waklder, 98-2742 (La.1/15/99), 728 So.2d 837, the dissenting board members would recommend that respondent be suspended from the practice of law for six months, with all but thirty days deferred.

|7The ODC sought review of the disciplinary board’s ruling in this court. We ordered the parties to submit briefs addressing the issue of whether the record supports the board’s report. After reviewing the briefs filed by both parties, we docketed the matter for oral argument.

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 convine-ing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on the stipulations by respondent and other evidence in the record, we find respondent notarized and caused to be filed into a succession proceeding two affidavits that he knew or should have known contained false information. As respondent has admitted, there is clear and convincing evidence which establishes that he has violated Rules 3.3(a)(1), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

|RHaving found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, 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 the affidavit of death and heirship executed by Walter, stating that Patsy died without leaving a will, we find respondent’s conduct was largely negligent. Although respondent probably should have undertaken a more detailed investigation to confirm the correctness of Walter’s statement that Patsy died intestate, there was nothing in the statement to indicate it was false on its face.

The same cannot be said of the affidavit executed by respondent’s office staff. It is undisputed that respondent knew his notarial secretaries were not “well acquainted” with Patsy, and that they had no personal knowledge of whether she died intestate. The only logical conclusion which can be drawn from respondent’s actions is that he knowingly and intentionally filed this false affidavit into the court records. Respondent’s actions caused actual harm to Walter and Shirley’s children. In addition, respondent’s actions caused harm to the court system, which must be able to rely on the truthfulness of representations made by counsel. The baseline sanction for respondent’s misconduct is a suspension from the practice of law. See In re: Wahlder, 98-2742 (La.1/15/99), 728 So.2d 837.

In mitigation, we accept the hearing committee’s finding that respondent did not file this affidavit with any improper motive. As the committee observed, 19respondent sincerely believed that Walter’s representation that his wife died intestate was truthful and accurate, and his actions were undertaken with the intent of expediting the refinancing of Walter’s home. We also recognize the absence of a prior disciplinary record, respondent’s full and free disclosure to the disciplinary board and cooperative attitude toward the proceedings, inexperience in the practice of law at the time of the offense, good character and reputation, and remorse. We are unable to discern any aggravating factors from the record.

Considering all the circumstances, we find the appropriate sanction in this case is a six-month suspension from the practice of law. In light of the substantial mitigating factors present, and the absence of any aggravating factors, we will defer all but thirty days of the suspension, subject to the condition that any misconduct during a six-month period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Mitchell Reid Landry, Louisiana Bar Roll number 24147, be suspended from the practice of law for a period of six months. It is further ordered that all but thirty days of the suspension shall be deferred and respondent shall be placed on unsupervised probation for six months, subject to the condition that any misconduct during this period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

TRAYLOR, Justice, dissents and would impose greater discipline.

      . More specifically, respondent provided the .following admissions:
      (a) With respect to Rule 3.3(a), while [respondent] knew that his secretarial employees were not personally acquainted with the deceased or Mr. Wallendorf, he did not know nor did he believe that the underlying facts contained in the affidavits were false; rather, he believed the underlying facts to be true based upon Mr. Wallendorf's representations;
      (b) With respect to Rule 8.4(c) and (d), [respondent] further responds that he did not intentionally engage in any conduct involving misrepresentation to the court on the substantive facts placed before the court in connection with this succession proceeding, but does acknowledge that those aspects of the affidavit stating that the affiants were personally acquainted with the decedent were not accurate.

      . The board cited In re: Hartley, 03-2828 (La.4/2/04), 869 So.2d 799 (this court dismissed formal charges filed against an attorney who instructed a fellow attorney to notarize a power of attorney that incorrectly stated the affiant and a witness executed the document in the presence of the notary); In re: Guillory, 01-DB-047 (Board Op. 11/19/02) (the board publicly reprimanded an attorney who notarized an act of exchange involving real property after some of the owners did not sign the document in his presence); and In re: Deshotel, 97-DB-063 (Board Op. 4/8/99) (the board publicly reprimanded an attorney who prepared and backdated a marriage contract to a date pri- or to the signatories’ marriage even though he knew that a post-nuptial execution of a márriage contract without court authority wás null).

      . In Wahlder, the attorney permitted his client to sign his wife’s name to settlement documents, then witnessed the wife’s signature as if she had appeared before the lawyer. The attorney also knowingly attempted to prevent the client's wife and the court from discovering his actions by refusing to produce the documents when requested. Nonetheless, considering the significant mitigating factors present, including a lack of a dishonest or selfish motive and respondent's timely good faith efforts to rectify the consequences of the misconduct, the court imposed a fully deferred six-month suspension with probation.


text:
    In re: Michael David LANE.
    No. 2006-OB-1822.
    Supreme Court of Louisiana.
    July 26, 2006.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Michael David Lane, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Executive Director of the Lawyers Assistance Program. Should petitioner fail to make a good faith effort to satisfy 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.

JOHNSON, J., would deny.


text:
    In re: Mel L. CREDEUR.
    No. 2006-B-1866.
    Supreme Court of Louisiana.
    July 28, 2006.
   ORDER

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

IT IS ORDERED that Mel Lewis Cred-eur, Louisiana Bar Roll number 4589, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

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


author: CALOGERO, Chief Justice,

text:
    In re John MCGUIRE.
    No. 2006-OB-1744.
    Supreme Court of Louisiana.
    July 13, 2006.
   In re McGuire, John; — Plaintiff(s); Applying for Reconsideration of this Courts action dated July 13, 2006.

Reconsideration denied.

See Supreme Court Rule XVII, § 4(C): “Under no circumstances will the Committee process an application to take the July examination, and under no circumstances will the Court grant a petition to take the July examination, if the application is received by the Committee after June 30th.”

CALOGERO, Chief Justice,

would grant the application for reconsideration and would apply a “Katrina exception” to allow this applicant to sit for the bar examination commencing July 24, 2006.


text:
    STATE of Louisiana v. Jerome Jose FERRIER, Jr.
    No. 2006-KH-1640.
    Supreme Court of Louisiana.
    July 14, 2006.
   In Re Ferrier, Jerome Jose Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 441-424.

Writ granted for the sole purpose of transferring the application to the district court for action on the out-of-state warrant that apparently is the sole remaining basis for relator’s custody in Orleans Parish Prison. In all other respects, the application is denied.


text:
    B & G CRANE SERVICE, L.L.C. v. Shannon DUVIC, Bryan Vige and Turner Bros. Crane & Rigging, Inc.
    No. 2006-CC-1666.
    Supreme Court of Louisiana.
    July 14, 2006.
   In Re Turner Bros. Crane & Rigging Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 526,939; to the Court of Appeal, First Circuit, No. 06 CW 1196.

Stay denied. Writ denied.


text:
    Duc Huy HUYNH v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2006-CC-1644.
    Supreme Court of Louisiana.
    July 14, 2006.
   In Re Huynh, Due Huy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 53-364; to the Court of Appeal, Fourth Circuit, No. 2006-C-0629.

Denied.


text:
    Edward John GONZALES v. Anne Jaffe GONZALES.
    No. 2006-CJ-1797.
    Supreme Court of Louisiana.
    July 24, 2006.
   In re Gonzales, Anne Jaffe; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 545-922; to the

Court of Appeal, Fifth Circuit, No. 06-CA-290.

Denied.


text:
    STATE of Louisiana v. Heidi GILES.
    No. 2006-KK-1733.
    Supreme Court of Louisiana.
    July 24, 2006.
   In re Giles, Heidi; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 03-04-0942; to the Court of Appeal, First Circuit, No. 2006 KW 0828.

Stay of trial ordered. Writ granted and case remanded to First Circuit for briefing, argument, and full opinion.


text:
    Sidney HILL v. LARSON CONSTRUCTION SERVICES, INC., et al.
    No. 2006-CC-1734.
    Supreme Court of Louisiana.
    July 26, 2006.
   In re Larson Construction Services, Inc., et al.; Lichtell, Willie; Jones, Aaron; Transcontinental Insurance Company;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Plaque-mines, 25th Judicial District Court Div. B, Nos. 50-602, 51-075; to the Court of Appeal, Fourth Circuit, No. 2006-C-0699.

Stay denied. Writ denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Jean Claire WILLIAMS v. Debra Williams JONES.
    No. 2006-CD-1815.
    Supreme Court of Louisiana.
    July 27, 2006.
   In re Jones, Debra Williams; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 121,049; to the Court of Appeal, First Circuit, No. 2006 CW 1429.

Writ denied; stay denied.


text:
    Gregory William TRAMONTIN v. Brenda Boyett TRAMONTIN.
    No. 2006-CC-1874.
    Supreme Court of Louisiana.
    July 28, 2006.
   In re Tramontin, Brenda Boyett; — Defendant; Applying for Supervisory and/or Remedial Writs Family Court of East Baton Rouge, No. 128,498; to the Court of Appeal, First Circuit, No. 2006 CW 0772.

Not considered; not timely filed.


text:
    In re a Matter of an OFFENSE UNDER INVESTIGATION.
    No. 2006-KD-1860.
    Supreme Court of Louisiana.
    July 28, 2006.
   In re Louisiana Attorney General; State of Louisiana; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 00000.

Remanded to the Court of Appeal for its consideration.

TRAYLOR, J., would deny as premature.


text:
    STATE of Louisiana v. Phillip WATTS.
    No. 2006-KH-1743.
    Supreme Court of Louisiana.
    Aug. 1, 2006.
   In re Watts, Phillip; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 388,502; to the Court of Appeal, First Circuit, No. 2006 KW 0968.

Writ granted in part; otherwise denied. The district court is directed to hold a hearing under La.C.Cr.P. art. 648(2)(b). In all other respects, the application is denied.


text:
    STATE of Louisiana v. Julius C. CHRISTOPHER.
    No. 2006-KH-1884.
    Supreme Court of Louisiana.
    Aug. 4, 2006.
   In re Christopher, Julius C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 308-444; to the Court of Appeal, Fourth Circuit, No. 2006-K-0607.

Granted for the sole purpose of transferring the filing to the district court for its consideration under La.C.Cr.P. art. 701(F). The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Dewayne DOBBINS, Jr.
    No. 2006-KH-1918.
    Supreme Court of Louisiana.
    Aug. 4, 2006.
   In re Dobbins, Dewayne Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 456-982.

Granted for the sole purpose of transferring the filing to the district court for its consideration under La.C.Cr.P. art. 701(F). The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Jesus MATAMOROS.
    No. 2006-KH-1886.
    Supreme Court of Louisiana.
    Aug. 4, 2006.
   In re Matamoros, Jesus; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 465570.

Granted for the sole purpose of transferring the filing to the magistrate court for its consideration under La.C.Cr.P. art. 701(F). The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Quang LU.
    No. 2006-KK-1674.
    Supreme Court of Louisiana.
    Aug. 4, 2006.
   In re Quang Lu;- — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. C, No. 19804; to the Court of Appeal, First Circuit, No. 2006 KW 0744.

Denied.


author: PER CURIAM. h GUIDRY, J.,

text:
    STATE of Louisiana v. Tobie GILLESPIE.
    No. 2005 KA 1337.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Rehearing Denied June 30, 2006.
    Hon. Walter P. Reed, District Attorney, Dorothy Pendergast, Counsel for Appellee State of Louisiana.
    Katherine M. Franks, Counsel for Appellant.
    Before: KUHN, PETTIGREW and GUIDRY.
   PER CURIAM.

11 Tobie Gillespie was charged with two counts of attempted first degree murder and one count of possession of a firearm while in the possession of a controlled dangerous substance. He was tried by a jury, which convicted him of illegal carrying of weapons and one count of the responsive offense of attempted manslaughter. The jury acquitted him of the remaining attempted murder charge.

After sentencing, defendant appealed his convictions and sentences to this Court. Shortly after the appellate record was lodged, defendant filed a motion to supplement the record with a PowerPoint presentation shown by the state to the jury venire during voir dire. Defendant claims the presentation introduced unprofessional personal elements into the trial. Defendant also claims that the prosecutor’s comments regarding the reaction of the judge’s staff to the presentation indirectly allowed the prosecutor to inform the jury that he had special access to the judge’s staff. Counsel requested supplementation of the record so that she could view the presentation and file a supplemental brief on any issues raised during her viewing. While this motion was pending, the state provided defense counsel a copy of the presentation, and counsel has now filed a separate motion proffering the presentation to this Court.

The voir dire transcript reflects that the trial court instructed the panel, before the presentation was played, that the PowerPoint presentation was simply a tool the prosecutor used to assist with the selection process but the court would actually instruct the jury on the specific laws to be applied. The court also indicated that the defense would be allowed to show a presentation if defense counsel so desired.

The prosecutor began his portion of the voir dire with conventional explanations and questions to the jury. The transcript does not indicate the precise point when the presentation began, but it indicates the prosecutor began to refer to photographs at the start of his discussion of circumstantial and physical evidence. In his narrative, he identified his spouse and pets and presented an inquiry to be resolved through the use of circumstantial and direct evidence. The prosecutor used the presentation and his explanation to |j»show the potential jurors the difference between the types of evidence and their uses.

The presentation was never introduced into evidence. The court reporter recorded and transcribed the verbal comments the prosecutor made as the slides were shown to the prospective jurors. The defense attorney did not object to the use of the presentation or request that it be included in the record. Although present counsel alleges that, depending on the content of the presentation, the failure to object “may” -have been harmful to the defense case as a whole, we do not find these allegations sufficient to warrant inclusion into the appellate record of a computer-assisted presentation that was not introduced as if it were evidence at the trial. The PowerPoint presentation is not evidence, never having been introduced nor objected to. The transcript contains all comments at closing made by the prosecutor. Accordingly, defendant’s motion to supplement the record is denied.

MOTION TO SUPPLEMENT THE RECORD DENIED.

GUIDRY, J., concurs and assigns reasons.

h GUIDRY, J.,

concurring.

I will concur with the following language.

I believe the trial court should not have allowed the prosecutor to show this production to the potential jurors without making it a part of the record. Although the PowerPoint presentation is not “evidence”, jury selection is an essential part of the trial of a case, and events that occur during jury selection are subject to appellate review if the defendant alleges there was error in the selection process. In this case, defense counsel has now filed a motion to proffer the presentation to the Court, and this motion establishes that defense counsel has seen the presentation. Neither this motion nor the motion offering to proffer the presentation specify any particular way in which the jury may have been improperly influenced in this case, and for that reason I concur with the majority’s decision denying the motion to supplement the record. However, trial judges should be cautious in allowing proceedings that are not accurately reflected in the record.