author: ALTENBERND, Judge.

text:
    Mary Colleen ERP, Appellant, v. Albert John ERP, Appellee.
    Nos. 2D05-3144, 2D06-1934.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.

      Robert L. Donald of Law Offices of Sherman and Donald, Fort Myers; and William T. Haverfield of The Pavese Law Firm, Fort Myers, for Appellant.
    Nicole L. Goetz and Victoria M. Ho of Asbell, Ho, Klaus & Goetz, P.A., Naples, for Appellee.
   ALTENBERND, Judge.

Mary Colleen Erp appeals the final judgment of dissolution of her marriage to Albert John Erp, arguing that the trial court made various errors in fashioning an equitable distribution of the parties’ marital assets. She also appeals portions of an authorized postjudgment order that slightly modified the final judgment. We reverse only that portion of the judgment permitting the Husband to pay an equalizing payment for equitable distribution over ten years at a reduced rate of interest. We remand for the trial court to apply the statutory interest rate in section 55.03, Florida Statutes (2004), to this payment as of a date no later than the date the final judgment was entered. As to the other issues raised by the Wife, we affirm. We specifically conclude that the trial court did not abuse its discretion by accepting an expert’s opinion that a marketability discount was appropriate in calculating the value of the couple’s eighty percent interest in a closely held S-corporation.

I. THE FAMILY BUSINESS AND THE TRIAL COURT’S RESOLUTION OF EQUITABLE DISTRIBUTION

The parties married in 1986. Both have adult children from previous marriages. Shortly after the marriage, the parties acquired a small recreational vehicle (RV) dealership located near Interstate 75 in Lee County. As a result of the couple’s efforts, the dealership became very successful and grew substantially during the marriage. At the time of the final hearing, the business was producing over a million dollars in net annual income for the parties.

The business was structured as a sub-chapter S-corporation, with the Husband and Wife each owning forty percent of the stock. All of this stock, for purposes of the dissolution, was a marital asset. The remaining twenty percent of the stock was owned in two ten percent blocks, one of the blocks held by the Wife’s son from her prior marriage, and the other owned by the Husband’s son from his prior marriage. Thus, neither party individually owned a majority of the corporation, and neither could control the corporation by vote without obtaining the vote of their spouse or the vote of both children.

The primary dispute in this proceeding centered around the valuation and equitable distribution of the parties’ interest in this business and the real estate associated with it. While this action was pending, the Wife and her son also filed a separate action for judicial dissolution of the corporation pursuant to section 607.1430(2)(a), Florida Statutes (2003), alleging that the directors were deadlocked in the management of the corporate affairs. The corporate lawsuit did not proceed to trial prior to the final hearing in this case. Thus at least for the Husband and Wife, the issues involving the value of the corporation and the distribution of their shares were decided in this dissolution of marriage proceeding.

The Husband and Wife both agreed that one of them should leave the marriage owning eighty percent of this corporation and the other party should receive one-half of the fair market value or fair value of the parties’ interest in the business as equitable distribution. Each of them asked to be awarded the eighty percent shares of stock. Each party presented the testimony of a well-qualified expert, and each expert presented a report regarding the proposed value of the business and the parties’ interest in the business as of December 31, 2003, the last full year for which financial information was available at the time of the trial.

The Husband’s expert opined that the business as a whole was worth $4.56 million, while the Wife’s expert opined that it was worth $12.5 million. Both experts generally used an income-based approach to valuing the business, and both experts explained in detail how they had calculated their proposed value. They also testified to the value of the parties’ respective interests in the corporation based upon the number of shares held by each.

Ultimately, the Husband’s expert presented a demonstrative exhibit detailing the differences between the two appraisals. That demonstrative aid explained that the Husband’s expert had (1) “tax-effected” the income stream of the company; (2) performed a regression analysis; (3) determined that a working capital adjustment was not appropriate; (4) measured the company’s income based upon a “last in, first out” (LIFO) accounting method rather than a “first in, first out” (FIFO) method; (5) applied a minority discount to each party’s forty percent shares; and (6) applied a twenty-five percent marketability discount to the value of the business. Based upon the Husband’s expert’s analysis, the Wife’s one-half share of the parties’ share of the corporation was worth $720,000. In contrast, the Wife’s expert maintained that the Wife’s one-half share of the parties’ interest was worth $5 million.

The trial court determined that the Husband should be awarded the parties’ eighty percent interest in the corporation and that the Wife should receive one-half of the fair market value of that interest as equitable distribution. In determining the fair market value of the business, the court accepted some portions of each expert’s analysis. After some interaction between the court, the experts, the parties, and their counsel regarding the court’s initial conclusions, the court found the value of the business as a whole was $6.2 million. The court valued the parties’ eighty percent interest at $4.96 million.

The court arrived at this calculation by beginning with the Wife’s expert’s figure of $12.5 million. The court then resolved the six factors explained by the demonstrative aid by (1) rejecting the Husband’s expert’s advice to “tax-effect” the income stream; (2) applying a regression analysis as recommended by the Husband’s expert; (3) including an adjustment for working capital as recommended by the Wife’s expert; (4) utilizing a LIFO accounting method as explained by the Husband’s expert; (5) rejecting the Husband’s expert’s application of a minority ownership discount; and (6) applying a marketability discount consistent with the approach taken by the Husband’s expert, but at the reduced level of ten percent. Based upon this calculation, the court found that the Wife’s one-half interest in the parties’ share of the corporation was $2.48 million.

Because the parties’ interest in the business was by far the most valuable marital asset, the trial court had to fashion an equitable distribution that required a large equalizing payment by the Husband. This payment needed to be structured in a manner that would fairly compensate the Wife without undue financial jeopardy to the Husband or the ongoing business. The trial court decided that the Husband would be allowed to make the equalizing payment of $3,943,197 by paying one-fifth of the amount immediately, with the remainder paid over ten years with interest accruing at the rate of four percent. As justification for the four percent interest rate, which is lower than the legal interest rate, the court explained the rate was “somewhat less than prime rate” and was chosen because “the business is a risky operation” for which a potential buyer would pay a lower interest rate. Notably, neither expert’s testimony touched on this issue.

The court’s oral pronouncement concerning the disposition of the corporate shares occurred on September 17, 2004. The final judgment of dissolution was not entered until December 28, 2004. The judgment indicated that the Wife’s equalizing payment would be liquidated as of September 17, 2004, and that the four percent interest on the equalizing payment would accrue from that date.

The Wife sought rehearing on various issues. The trial court addressed those issues as well as postjudgment motions to enforce the final judgment and entered a postjudgment order which is also a subject of this appeal. For the most part, the final judgment remained unchanged by the subsequent order. However, the trial court concluded that the four percent interest on the equalizing payment should not begin to accrue until May 26, 2005, when the trial court denied the Wife’s motion for rehearing.

In this appeal the Wife challenges, among other things, the trial court’s decision to apply the marketability discount of ten percent in arriving at the value of the parties’ interest in the business and the reduced rate of interest applied to the equalizing payment and the date upon which the interest was held to accrue. We find no abuse of discretion in the trial court’s decision to apply the marketability discount recommended by the Husband’s expert and supported by that expert’s testimony. We agree, however, that the Wife was entitled to the statutory rate of interest at least from the date the final judgment was entered.

II. THE TRIAL COURT HAD DISCRETION TO RELY UPON AN EXPERT’S OPINION THAT A MARKETABILITY DISCOUNT WAS APPROPRIATE IN DETERMINING THE VALUE OF THE PARTIES’ INTEREST IN THE BUSINESS

The Wife urges this court to hold that the trial court erred, as a matter of law, in applying a marketability discount to the parties’ interest in the RV dealership. She claims that a marketability discount is never appropriate in a dissolution of marriage action that effectively results in a corporate buy-out of one spouse. Although the Wife presents this argument well and there is case law that appears to resolve similar issues as questions of law, we doubt that this issue is actually a legal issue appropriate for such a rule. The decisions that judges make when valuing businesses in the context of a divorce are fact-intensive and usually heavily dependent upon the opinions of well-trained experts. The question is not whether the trial court can employ one method or another in valuing a business, but is more appropriately phrased as whether an expert may be permitted to testify and render an opinion based upon a valuation method that the expert claims to be acceptable within his or her profession. If the expert is permitted to so testify, then the trial court, as a finder-of-fact, should have considerable discretion in deciding to what extent it accepts or rejects the expert testimony.

As support for her position that the trial judge should be prohibited from applying a marketability discount, the Wife points to section 607.1301(4), Florida Statutes (2005), which defines the “fair value” of a corporation in the context of a shareholder’s right to appraisal. Section 607.1301(4)(c) prohibits a discount for lack of marketability or for minority status in such an appraisal.

Section 607.1301(4)(c) was enacted after the entry of the final judgment of dissolution of marriage in this case. See ch.2005-267, §§ 2, 27, Laws of Fla. at 1811, 1889. Section 607.1301 expressly states that its provisions apply only to sections 607.1302 to 607.1333, those sections providing certain shareholders appraisal rights upon the occurrence of specific events affecting the nature of the corporation or the shares held. Thus the Wife does not argue that this statute specifically applies to prevent the application of a marketability discount, but rather argues by analogy that the same principles that fueled this legislation regarding shareholder appraisal rights should apply in what is effectively a corporate dissolution or buyout occurring because of a dissolution of marriage. The Wife overlooks, however, a distinction made in corporate law between a circumstance in which minority shareholders exercise their appraisal rights due to a significant change in the corporation that was beyond their control, and a circumstance in which majority shareholders who are deadlocked seek a corporate dissolution.

Generally speaking, the appraisal rights accorded to minority shareholders under sections 607.1302 to 607.1333 are intended to protect them from oppression at the hands of the majority shareholders, especially in the context of closely held corporations. See, e.g., Douglas K. Moll, Shareholder Oppression and “Fair Value”: Of Discounts, Dates, and Dastardly Deeds in the Close Corporation, 54 Duke L.J. 293 (Nov.2004). Traditionally, unanimous shareholder approval was required for actions that changed the fundamental nature of a corporation. See Barry M. Wertheimer, The Shareholders’ Appraisal Remedy and How Courts Determine Fair Value, 47 Duke L.J. 613, 614 (Feb.1998). When the law shifted away from requiring unanimous approval of such changes, the appraisal remedy was created to provide certain rights to the minority shareholders in exchange for this loss of veto power. Id. at 614-15. Today, the appraisal remedy “serves a minority shareholder protection role, sometimes providing liquidity to shareholders, but most often operating to protect minority shareholders who are cashed out of their investment.” Id. at 616. It is in this context that section 607.1301(4)(c) prohibits the application of a marketability discount in the valuation of the closely held corporation. It prevents majority shareholders from effecting a fundamental change in the corporation at the expense of the minority shareholders and also arguing that the compensation of dissenting minority shareholders should be further reduced by way of a marketability discount. See Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353, 364 (Colo.2003) (“The dissenters’ rights statute serves as the primary assurance that minority shareholders will be properly compensated for the involuntary loss of their investment.”).

In this case, the Wife is not the victim of majority shareholder oppression. From her perspective, there has been no involuntary change in the fundamental nature of the corporation. Rather, she and the Husband held an equal amount of the shares in the corporation. She and the Husband agree they can no longer run the business together and that one party must buy out the other’s share. Thus, the facts presented here are akin to an action for judicial dissolution of a corporation based upon a deadlock in the management of the corporation’s affairs pursuant to section 607.1430(2)(a). Indeed, the Wife pursued such an action in addition to seeking the Husband’s shares in the action for dissolution of marriage.

There admittedly is a significant debate about when marketability discounts are appropriate in any proceeding requiring the valuation of a closely held corporation. See, e.g., Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 734 A.2d 721 (1999). It seems that the debate is sometimes led astray by the application of broad generalizations that do not differentiate between the types of proceedings within which valuations are required, nor acknowledge that the appropriate analysis for the valuation of a business may change depending upon the specific legal and factual context presented. What is appropriate in the oppressed shareholder or minority appraisal rights cases may not necessarily be desirable in a judicial dissolution of a corporation or in an action for dissolution of marriage involving equitable distribution.

In the context of judicial dissolution of corporations, the context perhaps most analogous to the scenario presented in this particular action for dissolution of marriage, Florida courts have generally accorded discretion to the trial court to determine, based upon the evidence and circumstances presented, whether a marketability discount should be applied in the valuation of a closely held corporation. See, e.g., Munshower v. Kolbenheyer, 732 So.2d 385, 386 (Fla. 3d DCA 1999); see also Cox Enters., Inc. v. News-Journal Corp., 469 F.Supp.2d 1094, 1108 (M.D.Fla.2006) (“The court in Munshower merely determined ... that courts may apply a lack-of-marketability discount when valuing shares in a closely-held corporation; it did not determine that they must do so.”). This same discretion has been applied in dissolution of marriage cases involving the valuation, but not the distribution, of corporate stock. See Parry v. Parry, 933 So.2d 9 (Fla. 2d DCA 2006); Williams v. Williams, 683 So.2d 1119 (Fla. 3d DCA 1996); Miller v. Miller, 662 So.2d 391 (Fla. 5th DCA 1995).

We conclude that it is inappropriate for this court to prohibit the application of a marketability discount under these circumstances. Rather, a trial court should be accorded the discretion to determine whether a marketability discount should apply to the valuation of a closely held corporation in a dissolution of marriage case where the court is traditionally charged with achieving equity through the use of various remedies. As a result, the best way for a litigant to address the appropriateness of a marketability discount is through the examination or cross-examination of a valuation expert.

In this case, the trial court had expert testimony indicating a marketability discount was appropriate. We are not convinced that any fact established during cross-examination required the trial court to completely reject that testimony. It is perhaps noteworthy that the trial court reduced the recommended discount from twenty-five percent to ten percent in light of other evidence adduced at trial. We therefore find no abuse of discretion in the trial court’s decision to apply a ten percent marketability discount in this case.

III. THE TRIAL COURT ERRED IN ESTABLISHING THE INTEREST RATE AND THE DATE OF ITS ACCRUAL

We now turn to the trial court’s decision to permit the Husband to pay the Wife an equalizing amount of $3,943,197 at a reduced interest rate, with the accrual of interest deferred to a date beyond the entry of the final judgment. As explained in section I, the Husband was ordered to pay one-fifth of this amount, or $788,639.40, immediately upon entry of the final judgment. The remaining balance was to be paid in equal monthly installments for ten years, subject to an interest rate of four percent. In the postjudgment order, the trial court delayed the accrual of interest on this amount until the date the court disposed of the Wife’s motion for rehearing.

The Wife’s interest in the marital estate was liquidated as of the entry of the final judgment. No one suggests that she retained voting rights on her shares of stock or that she had any right to income from those shares during the period when the case was pending on rehearing. The law generally mandates a statutory rate of interest on monetary awards from the date of the entry of the judgment. See §§ 55.03, 687.01, Fla. Stat. (2004); Amerace Corp. v. Stallings, 823 So.2d 110 (Fla.2002).

We recognize that the Fifth District has held that the selection of an appropriate interest rate may be a matter of some discretion in dissolution of marriage cases. See Rey v. Rey, 598 So.2d 141, 145 (Fla. 5th DCA 1992). We need not decide in this case whether we agree with the Fifth District that such discretion may be accorded in light of sections 55.03 and 687.01. Even if the trial court did have discretion to alter the interest rate, it could not use that discretion to lower the interest rate in the absence of competent, substantial evidence justifying a lower interest rate.

The trial court justified the rate by explaining the rate was “somewhat less than prime rate” and was chosen because “the business is a risky operation” for which a potential buyer would pay a lower interest rate. We note that a buyer does not generally pay interest to a seller; instead, a buyer pays interest to a lender. If a business is risky, a commercial financial lender tends to charge a higher interest rate. Thus, although there is no evidence that this business is “risky,” such evidence would be a reason to give the Wife a higher interest rate than the legal rate, not a lower one. The trial court has essentially compelled the Wife to become the Husband’s lender at what the trial court recognizes to be a commercially unreasonable rate. We conclude that nothing in the law or in the evidence presented gives the trial court that discretion. Accordingly, the statutory interest rate should be applied in this case. It should accrue from the date of the final judgment. Nothing occurred in the postjudgment proceedings that would justify altering the standard date for accrual of interest.

We therefore affirm the final judgment of dissolution of marriage and the post-judgment order in all but two respects. The final judgment must be modified to reflect that the statutory rate of interest applies to the equalizing payment owed by the Husband, and the provision of the postjudgment order delaying the accrual of interest to a date beyond the entry of the final judgment must be vacated in favor of a provision applying the interest rate as of a date no later than the entry of the final judgment.

Affirmed in part, reversed in part, and remanded with directions.

DAVIS and VILLANTI, JJ., concur.

      . We note that in a civil or criminal case, the standard jury instructions inform the jury that they, as the fact-finders in the case, can accept, reject, believe, or disbelieve all or any part of an expert’s testimony. Fla. Std. Jury Instr. (Civ.) 2.2(b); Fla. Std. Jury Instr. (Crim.) 3.9(a).

      . The children involved in this corporation may be in a different situation. Prior to the divorce, both children apparently needed to vote in favor of any decision requiring a vote of stock. Now the Husband owns eighty percent of the stock.

      . The Wife argues not only that she is entitled to the higher rate of interest from the date of the final judgment, December 28, 2004, but that the interest should accrue as of September 17, 2004, the date of the trial court's oral pronouncement. Our record does not reveal what actions the parties took regarding the operation or distribution of the corporation during this significant time period. As a result, we hold only that the court must apply the higher interest rate as a matter of law as of a date no later than the entry of the final judgment. On remand, however, the court may reconsider whether the circumstances occurring between the issuance of the oral pronouncement and the entry of the final judgment justify the accrual of the higher interest rate as of a date before the entry of the final judgment.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    George ROBERTS, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D07-5573.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.
    A.R. Mander, III of Greenfelder, Man-der, Murphy, Dwyer & Morris, Dade City, for Appellant.
    Judson Chapman, General Counsel, and Thomas C. Mielke, Assistant General Counsel, Miami, for Appellee.
   SILBERMAN, Judge.

The circuit court denied George Roberts’ petition for writ of certiorari that sought relief from the final order of the Department of Highway Safety and Motor Vehicles suspending Roberts’ driving privileges for one year. In this second-tier certiorari review, Roberts contends that the circuit court applied the wrong law when it determined that an officer outside his jurisdiction could make a legal stop and arrest as a private citizen for a breach of the peace based on Roberts’ erratic and unsafe driving. We disagree and deny the petition. See Clinton v. State, 421 So.2d 186, 188 (Fla. 2d DCA 1982) (recognizing that citizens have a “right to arrest a person who commits a misdemeanor in their presence when said misdemeanor amounts to breach of the peace”); State v. Furr, 723 So.2d 842, 844-45 (Fla. 1st DCA 1998) (determining that Furr’s drunk driving was a breach of the peace that authorized an officer outside his jurisdiction to make a citizen’s arrest); Edwards v. State, 462 So.2d 581, 582 (Fla. 4th DCA 1985) (determining that Edwards’ erratic and dangerous driving amounted to a breach of the peace, justifying a citizen’s arrest by an officer outside his jurisdiction). But see State, Dep’t of Highway Safety & Motor Vehicles v. Pipkin, 927 So.2d 901, 903 (Fla. 3d DCA 2005) (determining that an officer could not make a stop outside his jurisdiction for a traffic offense and that a citizen’s arrest analysis did not apply because the driver’s conduct did not constitute a felony).

Petition denied.

CANADY and WALLACE, JJ., Concur.

      . We note that another officer acting in his jurisdiction made the actual arrest and request for Roberts to submit to a breath test.


author: LaROSE, Judge.

text:
    Robert MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2589.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Robert Murphy appeals his conviction and sentence for driving under the influence of alcoholic beverages, third or subsequent conviction, and driving while license suspended, third or subsequent conviction. See §§ 316.193(2)(b)(l), 322.34(2)(c), Fla. Stat. (2005). Mr. Murphy raises five claims, only one of which has merit. The trial court erroneously imposed a no early termination of probation condition. We reverse on that point.

The trial court orally pronounced a sentence of eleven months and twenty-nine days in county jail followed by five years of probation. The written judgment and sentence included the additional condition of no early termination of probation. Mr. Murphy challenged this condition in a motion to correct sentencing error. See Fla. R.Crim. P. 3.800(b)(2). The trial judge denied relief, concluding that Mr. Murphy waived the issue by not objecting at the sentencing hearing. The sentencing transcript reflects, however, that Mr. Murphy could not object earlier because the trial court did not orally pronounce this condition. Therefore, he properly raised and preserved the issue for appeal. See Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.UO, & 9.600, 761 So.2d 1015, 1016, 1017 (Fla.2000) (stating rule 3.800(b) provides mechanism to correct sentencing error when written sentence deviates from oral pronouncement).

The trial court may not impose a special condition of probation that purports to divest the Department of Corrections (DOC) of its authority to recommend early termination of Mr. Murphy’s probation. See § 948.04(3), Fla. Stat. (2005); Swedish v. State, 724 So.2d 640, 640 (Fla. 2d DCA 1999); Baker v. State, 619 So.2d 411, 412 (Fla. 2d DCA 1993). Additionally, the trial court may not prevent the circuit court from exercising its discretion to discharge Mr. Murphy in the future. See § 948.05, Fla. Stat. (1991); Baker, 619 So.2d at 412.

The State concedes error. Therefore, we direct the trial court, on remand, to strike the special condition of probation and to correct the sentence and probation order so that the DOC is aware that the special condition no longer exists. We affirm on Mr. Murphy’s remaining claims without further discussion.

Reversed and remanded with directions.

WHATLEY and CASANUEVA, JJ., Concur.

      . This special condition is a substantive error that is correctable on appeal where preserved • with a rule 3.800(b)(2) motion. Cf. Ladson v. State, 955 So.2d 612, 613 (Fla. 2d DCA 2007) (affirming unpronounced, but otherwise proper, special condition of probation raised in rule 3.800(b) motion); Grubb v. State, 922 So.2d 1002, 1004 (Fla. 5th DCA 2006) (same).


author: WELLS, Judge.

text:
    BRIVIS ENTERPRISES, INC., Appellant, v. Teresita VON PLINSKI, as Personal Representative of the Estate of David Garcia, and all survivors, Appellee.
    No. 3D07-995.
    District Court of Appeal of Florida, Third District.
    April 2, 2008.
    Michael A. Vandetty, Miami, for appellant.
    The Alvarez Firm; Robert S. Glazier, Miami, for appellee.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   ON MOTION FOR REHEARING

WELLS, Judge.

We grant the motion for rehearing in part to correct a factual error, withdraw the opinion filed on February 27, 2008, and substitute the following opinion in its place.

Brivis Enterprises, Inc. appeals from an order denying its motion to quash service of process and to dismiss for lack of personal jurisdiction, filed after it had answered the complaint, moved to set aside a default, and engaged in discovery, all without mentioning service of process or personal jurisdiction. Because the defense was waived, we affirm. See Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002) (finding that pleading to the merits without objecting to service of process or lack of personal jurisdiction waives those defenses); Parra v. Raskin, 647 So.2d 1010, 1011 (Fla. 3d DCA 1995) (stating that failure to raise the insufficient service of process defense at the inception of a case, in either a motion or responsive pleading, constitutes a waiver of that defense); see also Caldwell v. Caldwell, 921 So.2d 759, 760 (Fla. 1st DCA 2006) (concluding that entering a general appearance following default without raising sufficiency of service of process or lack of personal jurisdiction constituted a waiver); Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (holding that active participation in a proceeding waives issues regarding service of process defense and constitutes submission to a court’s jurisdiction).

Affirmed.


author: PER CURIAM. | JOHNSON, Justice,

text:
    In re Joseph W. THOMAS.
    No. 2003-B-2738.
    Supreme Court of Louisiana.
    Feb. 25, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, Robin Marie DeSalle-Pitt-man, Deputy Disciplinary Counsel, for applicant.
    Charles E. Cotton, Joseph W. Thomas, New Orleans, for respondent.
   ^ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This attorney disciplinary proceeding involves six counts of misconduct stemming from two sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joseph W. Thomas, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS 01-DB-014

Vezina Matter

Respondent represented the plaintiffs in a medical malpractice claim and attorney Scott Vezina represented the defendant. In January 2000, respondent and Mr. Vezi-na appeared in court for a hearing in connection with a motion for sanctions filed by respondent. Following a hearing, the presiding judge, Judge Roland Bel-some of Civil District Court for the Parish of Orleans, denied respondent’s motion.

As they left the courtroom, respondent and Mr. Vezina became engaged in a heated discussion in the anteroom of the judge’s chambers. The confrontation was witnessed by Dawn Garrison, Judge Bel-some’s minute clerk, and Bruce Waltzer, another attorney. These witnesses later testified that respondent made physical contact with Mr. Vezina by pressing Mr. Vezina against the wall with his chest and hitting Mr. Vezina’s hands as Mr. Vezina raised them in self defense. During the incident, | ¡.respondent directed abusive language toward Mr. Vezina and continued to threaten him, both physically and verbally. The altercation finally ceased when Mr. Waltzer stepped in between both men. At that point, Ms. Garrison proceeded to Judge Belsome’s courtroom and reported what she had witnessed. Judge Belsome, who had already heard a “very loud outburst” in his anteroom, directed that respondent and Mr. Vezina be brought into his courtroom.

Judge Belsome then halted the regular proceedings on his docket in order to conduct a sua sponte rule for contempt hearing against respondent. At the hearing, Judge Belsome received testimony from respondent, Mr. Vezina, Ms. Garrison and Mr. Waltzer. Although respondent denied touching or threatening Mr. Vezina, the other witnesses testified to the contrary. At the conclusion of the hearing, Judge Belsome found respondent in contempt of court and sentenced him to one day in jail or a $500 fine. Respondent paid the fine.

Thomas Matter

In August 1997, James Thomas, Jr. and his siblings retained respondent to institute an asbestos claim and a medical malpractice claim arising from the death of their father. In March 2000, the Thomas clients filed a complaint with the ODC, alleging that in the two and one-half years since they retained respondent, respondent had not taken any measures to represent their interests. They indicated they requested their case files from respondent, but respondent refused to return them.

The ODC forwarded the complaint to respondent. Several weeks later, in June 2000, respondent filed an untimely response to the complaint. Respondent represented that he would be happy to return the files, but that it would take approximately two weeks to copy them. However, by October 2000, respondent had |sstill not produced the files. Mr. Thomas again tried to contact him in writing and by telephone, but was unsuccessful.

Nearly one year later, in September 2001, respondent agreed to produce the files. He advised his clients they could retrieve their copies of the files from a copy service center. However, when they inquired with the copy service center about retrieving the files, they were told they would be billed for copying services in the amount of $1,975.46, which they were unable to pay. Ultimately, the clients did not receive their files until November 2001, almost two months after the formal disciplinary hearing in this matter.

Kerr Matter

As stated in Count II, the Thomas family retained respondent to institute a suit on their behalf arising from the death of their father. In June 1998, respondent filed suit on their behalf against Cooper/T. Smith Stevedoring. The petition sought recovery, in part, pursuant to the Long-shore and Harbor Workers’ Compensation Act (“Act”), based on allegations the Thomas family was financially dependent on their father at the time of his death. After one continuance, the matter was scheduled for trial on February 24, 1999.

One week before trial, respondent moved for a continuance. In his motion, respondent asserted his associate, who had been handling the case for him, left his firm in early January 1999 and respondent was unfamiliar with the case. Additionally, respondent alleged he had a previously scheduled medical malpractice matter set for trial in Orleans Parish Civil District Court at the same time as the trial in the longshoreman’s case.

14Judge James W. Kerr, Jr., the presiding administrative law judge, denied the motion. By telephone conference on February 19, 1999, he advised the counsel that he would not postpone the trial because he had already continued the case once for respondent and set aside the entire day on his docket for the trial. Judge Kerr rejected respondent’s claim of a scheduling conflict, pointing out the court’s pre-trial order issued in early December advised the parties that they had ten days from the issuance of the order to notify the court of any conflicts. Respondent replied that he had never seen the pre-trial order, but “assumed it was someplace in his office.”

Trial was scheduled to commence at 8:15 a.m. Respondent did not appear at Judge Kerr’s court at the scheduled time of 8:15 a.m., but instead respondent elected to go to Civil District Court to select a new date for his malpractice trial, even though he was aware that case had already been continued. At the time, respondent knew he would be late for trial in Judge Kerr’s court.

Respondent eventually appeared in Judge Kerr’s court at approximately at 9:35 a.m., one hour and fifteen minutes late. When he finally appeared for trial, he made no comment about his tardiness, nor did he apologize to the court, his clients, or opposing counsel. When questioned by the court about his tardiness, respondent answered in a belligerent manner.

| sJudge Kerr then attempted to proceed with the merits of the trial, but found respondent was completely unprepared to litigate the proceedings. He determined respondent had never met with his clients prior to trial and failed to produce a witness list. Moreover, the exhibits he did produce (which had been brought by his clients) were not marked and paginated as required by the court’s pretrial order. As a result, the court proceedings were held up for approximately an additional thirty-minute period so respondent could get his few exhibits together and mark them.

Subsequently, when counsel for the defendants sought to rely on medical documents submitted during earlier discovery proceedings by respondent’s associate, respondent objected to his own submissions on the basis of hearsay. During the trial, respondent demonstrated a complete lack of unfamiliarity with the procedural rules of the administrative proceeding. For example, he objected to Judge Kerr’s questioning of witnesses, even though such questioning is permitted under the Act. When Judge Kerr questioned respondent’s client, Alonzo Thomas, respondent accused the court of asking questions “hostile” to the position of his client, being “biased,” and trying “... to torpedo the testimony” of Mr. Thomas. Through the proceedings, respondent | ¡¡acted in a rude and arrogant manner toward Judge Kerr and at one point referred to the proceedings as a “joke.”

Subsequently, after conferring with the Department of Labor Chief Judge in Washington, D.C., Judge Kerr referred the matter to the United States District Court for the Eastern District of Louisiana to consider disciplinary charges against respondent. The district court ultimately did not pursue disciplinary charges against respondent, with the condition respondent attend additional continuing legal education on the topic of professionalism.

In January 2000, Judge Kerr issued an Order of Suspension suspending respondent from practice in his court, though permitting respondent to petition for reinstatement upon submitting proof that he had complied with the district court’s order.

Commingling/Child Support Matter

In December 1999, the District Attorney’s Office for the Parish of Orleans filed a complaint with the ODC. In the complaint, Assistant District Attorney Elizabeth Chatelain explained that in connection with a child support collection proceeding against respondent, she learned that respondent had apparently used checks from his client trust account to pay his personal child support obligation.

Respondent replied that he did not believe any clients’ funds were in the trust account when the checks were written. Moreover, he denied he owed any child support, and instead alleged the district attorney’s office had engaged in ethical misconduct in filing a complaint against him.

Subsequently, the ODC undertook its own investigation of respondent’s financial records. After an audit of respondent’s trust account, it determined 17respondent had commingled personal and client funds, failed to place client funds in trust, and paid personal expenses out of his trust account.

Meanwhile, the district attorney’s office continued to pursue the child support collection proceeding against respondent. On September 20, 2000, Judge Rosemary Le-det of the Civil District Court for the Parish of Orleans found respondent in contempt of court for failing to pay $133,935 in past due child support previously ordered. The court also found that respondent’s failure to pay child support was without good cause.

After being notified of the judgment of noneompliance, we déclared respondent immediately ineligible to practice law in the State of Louisiana, pursuant to Supreme Court Rule XIX § 19.1 due to his failure to pay court-ordered child support. We further directed the ODC to institute appropriate disciplinary proceedings against respondent based on his failure to pay child support. In re: Thomas, 01-1142 (La.5/2/01), 798 So.2d 920.

Ultimately, respondent entered into a consent agreement with the State of Louisiana, in which respondent agreed to make an immediate payment of $100,000 in satisfaction of his past due child support obligation, and to pay a remaining $48,000 by August 31, 2001. Following the $100,000 payment, we reinstated respondent’s eligibility to practice law. In re: Thomas, 01-1142 (La.6/28/01), 798 So.2d 921. However, when he neglected to satisfy the balance of his support obligation, he was returned to ineligibility status. In re: Thomas, 01-1142 (La.10/11/01), 803 So.2d 962. Once respondent fully satisfied his child support obligations, we returned him to eligibility. In re: Thomas, 01-1142 (La.11/9/01), 803 So.2d 962.

| M-DB-OU

Baham Matter

In 1994 or 1995, Jewel Cannon Baham retained respondent to represent her in a class action suit against Wyeth-Ayerst Laboratories concerning a defective Norplant contraceptive product. In April 1995, respondent wrote to his client enclosing the answer to the suit filed by the defendants, and advised his client she was a “part of the tag along litigation in the case.” In 1997, respondent answered interrogatories on behalf of his client in the litigation. Thereafter, respondent took no further action on behalf of his client.

Over the next three years, Ms. Baham made numerous attempts to communicate with respondent, but was unsuccessful. In May 1999, a settlement was authorized in the litigation. Respondent failed to convey information about the settlement to Ms. Baham.

In September 2000, Ms. Baham filed a complaint with the ODC alleging respondent failed to communicate with her and neglected her legal matter. Respondent filed a response conceding he did not know the status of his client’s case, but would take efforts to ascertain such. Subsequently, in December 2000, the defendants filed a Motion to Dismiss for Want of Prosecution. Respondent filed a timely opposition to the motion in January 2001.

Cantin Matter

In 1995, Benjamin Cantin, III, individually and on behalf of his minor son, retained respondent to institute a medical malpractice action stemming from the death of Mr. Cantin’s wife. In October 1996, respondent filed suit on behalf of his client. | aThereafter, respondent took no further action on behalf of his client and the case was ultimately dismissed as abandoned.

In December 2000, Mr. Cantin, who was unaware of the dismissal of his suit, filed a complaint with the ODC alleging that respondent had failed to communicate with him for more than three years. In response to the complaint, respondent asserted that he did not have an expert and, therefore, did not pursue the matter. Subsequently, he admitted at the formal hearing that he let the case “die on the vine.”

DISCIPLINARY PROCEEDINGS 01-DB-014

Formal Charges

In January 1999, the ODC filed formal charges against respondent under docket number 01-DB-014. These charges encompassed the Vezina matter, Thomas matter, Kerr matter and the commingling/child support matter. Collectively, these charges alleged violations of Rules 1.1 (incompetence), 1.3 (lack of diligence), 1.15 (safekeeping client property), 3.1 (failure to pursue meritorious claims), 3.3 (candor toward the tribunal), 3.4(c) (fairness to opposing party and counsel; knowing disobedience of the rules of a tribunal), 3.5(c) (engage in conduct intended to disrupt tribunal), 8.2(a) (comments regarding judicial official), 8.4(a) (violating the Rules of Professional Conduct), 8.4(b) (criminal acts adversely reflecting on the lawyer’s honesty), 8.4(c) (conduct involving fraud, deceit, dishonesty or misrepresentation), 8.4(d) (conduct prejudicial to the administration of justice) and 8.4(e) (imply ability to influence judicial officer) of the Rules of Professional Conduct. Subsequently, the |inODC supplemented and amended the formal charges to allege additional violations of Rules 3.4(c) and 8.4(b) based on the declaration of ineligibility to practice law stemming from respondent’s failure to satisfy his past child support obligations.

Respondent filed an answer to the original and amended charges generally denying any misconduct on his part.

01-DB-085

Formal Charges

In August 2001, the ODC filed formal charges under docket number 01-DB-085 against respondent. These charges, encompassing the Baham matter and Cantin matter, alleged violations of Rules 1.1(a) (incompetence), 1.2(a) (scope of representation), 1.3 (lack of diligence), 1.4 (failure to communicate), 3.2 (failure to expedite litigation), 8.4(a) (violating the Rules of Professional Conduct) and 8.4(c) (conduct involving fraud, deceit, dishonesty or misrepresentation) of the Rules of Professional Conduct. Respondent filed an answer in proper person generally denying any misconduct on his part.

Recommendations of the Hearing Committees

01-DB-014

A formal hearing was conducted over a period of several days. Thereafter, the hearing committee issued its recommendation.

lnAs to the Vezina matter, the committee made a factual finding that respondent made physical contact with Mr. Vezina, directed abusive language at Mr. Vezina, and physically and verbally threatened Mr. Vezina. In making this factual determination, the committee specifically determined that Mr. Vezina’s testimony was more credible than respondent’s testimony. Based on this finding, the committee concluded respondent disrupted a tribunal in violation of Rule 3.5(c), and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

As to the Thomas matters, the committee made a finding of fact that respondent failed to return the Thomas family’s files for a lengthy period of time, despite their many requests and the institution of a disciplinary complaint. The committee concluded this conduct violated Rule 1.16.

As to the proceedings in Judge Kerr’s court, the committee made a finding of fact that respondent was totally unprepared for trial, failing to competently and diligently represent his clients in violation of Rules 1.1 and 1.3. It also found respondent demeaned Judge Kerr and engaged in conduct prejudicial to the administration of justice in violation of Rules 3.5(c) and 8.4(d). The committee | ^observed that respondent’s client, Alonzo Thomas, exhibited discomfort at respondent’s conduct during the hearing. The committee concluded that it could detect no remorse from respondent regarding the entire incident.

Finally, the committee found respondent commingled and converted funds in his trust account through his mishandling of his financial affairs in violation of Rules 1.15 and 8.4(a), although it was unclear if any client was hurt by respondent’s accounting practices. Regarding respondent’s failure to pay court-ordered child support, the committee noted that respondent had been involved in a great deal of litigation regarding his obligations, but it did not conclude he disobeyed an order of a court.

Addressing the issue of sanctions, the committee found as aggravating factors respondent’s prior discipline, lack of remorse and failure to acknowledge the wrongful nature of his conduct. In mitigation, the committee recognized respondent’s good character or reputation, extensive legal experience and cooperative attitude toward the disciplinary proceedings. Accordingly, the committee recommended that respondent be suspended from the practice of law for a period of two years.

01-DB-085

Following a formal hearing, the hearing committee found sufficient evidence to support each of the counts of misconduct. Specifically, it determined respondent incompetently handled his clients’ matters, failed to communicate with his clients, |13failed to expedite his clients’ matters and engaged in conduct involving fraud, deceit, dishonesty, or misrepresentation, in violation of Rules 1.1(a), 1.4, 3.2 and 8.4(c), respectively.

Addressing the issue of sanctions, the hearing committee concluded respondent caused actual injury to his clients, noting Ms. Baham’s claim was not prosecuted and Mr. Cantin’s claim was dismissed for lack of prosecution. It considered as aggravating factors prior discipline, pattern of misconduct, multiple offenses, obstruction and non-cooperation, refusal to acknowledge the wrongful nature of his conduct, substantial experience in the practice of law and indifference toward restitution.

Based on its findings, the hearing committee recommended that respondent be suspended for a period of two years and one day, with one year deferred, followed by a one-year period of probation.

Recommendation of the Disciplinary Board

The disciplinary board consolidated 01-DB-014 and 01-DB-011 and issued a single recommendation encompassing both sets of charges. Following its review of the record, the disciplinary board concluded the committee’s findings of fact were not manifestly erroneous, save some minor instances. However, the board determined there were additional professional violations, which were not cited by the hearing committees. Specifically, the board determined respondent engaged in criminal misconduct in violation of Rule 8.4(b), when he struck Mr. Vezina in Judge Belsome’s chambers. The board found respondent’s comments to Judge Kerr violated Rule 8.2(a) by impugning the integrity of Judge Kerr by suggesting that his decisions were based on [anything] other than the law and facts.” The board also concluded 114respondent violated Rule 3.4(c), based on his failure to comply with his court-ordered child support that resulted in protracted litigation, and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

As to the issue of sanctions, the board determined respondent violated duties to his clients, to the public, to the legal system and as a professional. While it concluded respondent’s conduct was knowing in most instances, it determined respondent’s conduct in the Vezina and Kerr matters was “unquestionably intentional.” It determined his lack of respect for the judge and lack of preparation in the Kerr matter caused damage to the legal system as well as his client. The board found respondent’s actions in the Thomas, Cantin and Baham matters caused frustration to his clients. Finally, it observed he also caused damage to the profession by his failure to abide by his child support obligations, necessitating the involvement of the court system and the District Attorney’s office.

As aggravating factors, the board recognized prior discipline, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of his conduct and substantial experience in the practice of law. In mitigation, the board noted the imposition of other penalties in light of the contempt ruling in Judge Belsome’s court, the contempt proceedings instituted by Judge Kerr, and the declaration of ineligibility issued by this court pursuant to Rule XIX, Sec. 19.1, which made respondent ineligible to engage in the practice of law.

Based on its findings, the board recommended that respondent be suspended from the practice of law for three years.

One board member dissented, urging disbarment to be appropriate under the facts.

| ^Respondent filed an objection to the board’s recommendation. Accordingly, 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. With these precepts in mind, we now turn to an analysis of the record to determine if respondent has violated the professional rules as charged.

Vezina Matter

The hearing committee made a factual finding that respondent “made physical contact with Mr. Vezina and pressed Mr. Vezina against the wall with his chest, placed his hands on Mr. Vezina’s chest, directed abusive language at Mr. Vezina, and physically and verbally threatened Mr. Vezina.” The committee’s determination was based on its credibility determinations after hearing testimony from respondent, Mr. Vezina and eyewitnesses to the incident. Although this court is the trier of fact in bar disciplinary cases, we are not prepared to disregard the credibility evaluations made |inby those committee members who were present during respondent’s testimony and who act as the eyes and ears of this court. Therefore, we cannot say the hearing committee was clearly wrong when it determined, based on its credibility determinations, that respondent engaged in a physical altercation. In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548.

In oral argument before this court, respondent spent much of his time disputing the board’s determination that his actions amounted to a battery. However, we find it is of no moment whether respondent’s actions would rise to the level of a battery for purposes of criminal law. For purposes of this disciplinary proceeding, it suffices to say his actions were intended to disrupt a tribunal and were prejudicial to the administration of justice. Accordingly, we find respondent’s conduct violated Rules 3.5(c) and 8.4(d).

Thomas Matter

The record clearly supports the committee’s factual finding that respondent failed to return the clients’ files to them in a prompt manner. Respondent asserts that he was entitled to make a copy of the file and the delay was occasioned by the copying costs. However, Rule 1.16(d) has always mandated the lawyer “promptly release” a client’s file upon the client’s request. Respondent’s delay in releasing the file, despite numerous requests by his client, cannot be considered “prompt” under 117any stretch of the imagination. Accordingly, we find respondent’s conduct violated Rule 1.16(d).

Kerr Matter

The hearing committee made factual findings that respondent’s comments toward Judge Kerr were prejudicial to the administration of justice and his substantive actions in this suit amounted to incompetent representation. Based upon our review of the transcript of the proceedings before Judge Kerr and other evidence in the record, we conclude this factual finding is amply supported. Respondent’s insulting and abusive language toward Judge Kerr and his utter lack of preparation for this case is frankly shocking to this court. Unquestionably, we find violations of Rules 1.1, 3.1, 3.4(c), 3.5, 8.2(a) and 8.4(a)(d) and (e).

Commingling!Child Support Matter

The committee found respondent commingled his own funds with those of his clients. This finding is supported by the record. Therefore, we find respondent violated Rule 1.15(a).

The record further establishes that respondent failed to pay court-ordered child support, causing him to be held in contempt of court. These facts establish a violation of Rule 3.4(c).

Baham Matter

The hearing committee found respondent failed to communicate with Ms. Baham and neglected her legal matter. Although respondent asserted Ms. Baham failed to provide him with a current address, the committee rejected his argument. The 118committee’s conclusions are supported by the record. Accordingly, we find respondent violated Rules 1.4 and 3.2.

Cantin Matter

The committee found respondent failed to communicate with Mr. Cantin and failed to take any action in his legal matter, causing it to be abandoned. These findings are supported by the record. Accordingly, we find respondent violated Rules 1.4 and 3.2.

SANCTIONS

Having found evidence of professional misconduct, the next 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).

Determining the baseline sanction for respondent’s misconduct is somewhat difficult, given the large amount of misconduct encompassed by these formal charges. In In re: Estiverne, 99-0949 (La.9/24/99), 741 So.2d 649, we suspended an attorney for one year and one day for threatening another attorney and brandishing a weapon. In In re: Bilbe, 02-1740 (La.2/7/03), 841 So.2d 729, we suspended an attorney for three years for conduct which in part involved disruptive and disrespectful conduct before an administrative tribunal. In a case involving neglect, failure to eommuni-cate |1Band failure to return files, we have imposed an eighteen-month suspension. In re Triehel, 00-1304 (La.8/31/00), 767 So.2d 694. Taking a composite view of these cases, we find the baseline sanction for respondent’s misconduct in the instant case is a lengthy suspension from the practice of law.

Numerous aggravating factors are present, including prior discipline, pattern of misconduct, multiple offenses, obstruction and non-cooperation, refusal to acknowledge the wrongful nature of his conduct, substantial experience in the practice of law and indifference toward restitution. However, in mitigation, we recognize that some of respondent’s misconduct was the subject of other penalties.

Considering all these factors, we find a three-year suspension from the practice of law is an appropriate sanction for respondent’s misconduct.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Joseph W. Thomas, Louisiana Bar Roll number 8163, be suspended from the practice of law for a period of three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, J., dissents and assigns reasons.

| JOHNSON, Justice,

dissenting.

It is well-settled that we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board. However, following a lengthy hearing, the hearing committee recommended a suspension for a period of two years and one day, with one-year deferred, subject to a one-year supervised probation.

In my opinion, the two-year suspension recommended by the hearing committee is appropriate discipline in this case. For this reason, I respectfully dissent.

      . In a pleading filed in connection with subsequent contempt proceedings, respondent stated, "a day or so before February 24, 1999, counsel for claimants was advised that the medical malpractice trial would be continued because of an ongoing trial.”

      . The following exchange occurred between respondent and Judge Kerr:
      Judge Kerr: All right. Mr. Thomas, this case was specifically set today, as a result of a conference call with your former assistant, and you were reminded that it was set for 8:15 during our conference call last week. Why weren’t you here and ready to go—
      Respondent: My—
      Judge Kerr: — to trial at 8:15? And stand up when you’re addressing the Court.
      Respondent: Your honor, do I detect some hostility to me?
      Judge Kerr: Yes, sir. You had—
      Respondent: And let me just say for the record—
      Judge Kerr: — everybody waiting here. Just a minute.
      Respondent: Before you said—
      Judge Kerr: You're not going to interrupt me. I'll give you ample time—
      Respondent: You interrupted me.
      Judge Kerr: — to speak. Yes. Sir.
      Respondent: You interrupted me.

        Judge Kerr: I’ll — I may interrupt you quite frequently.
      Respondent: I don't — let me tell you. I object to that.
      Judge Kerr: Okay.
      Respondent: I object to you interrupting me.
      Judge Kerr: Okay. We’ve waited an hour and 45 minutes. Why did we have to do that?
      Respondent: Because I wasn’t here is why you had to do it. Now, if you want to know why I wasn’t here—
      Judge Kerr: Yes sir,
      [emphasis added]

      . The ODC filed five counts of misconduct against respondent in these proceedings. As to the first count of misconduct, the hearing committee and disciplinary board found insufficient evidence to support the allegations and dismissed the charge. While the ODC’s filings in this court encompassed an objection to the dismissal of the first count, the ODC withdrew its objection to the dismissal at oral argument.

      . The ODC filed three counts of misconduct against respondent in these proceedings. As to the third count of misconduct, the hearing committee and disciplinary board found insufficient evidence to support the allegations and dismissed the charge. While the ODC’s filings in this court encompassed an objection to the dismissal of the count, the ODC withdrew its objection to the dismissal at oral argument.

      . As to respondent's failure to return the Thomas' files, respondent was not charged with Rule 1.16, relative to a failure to properly terminate a representation. Rather, he was charged with Rule 1.15, which pertains to a failure to safekeep client property. While the committee cited no reasons for substituting Rule 1.15 with Rule 1.16, the board determined the ODC simply made a typographical error and intended to charge respondent with Rule 1.16, which specifically pertains to the return of clients' files at the end of a representation. In affirming the committee's findings of the Rule 1.16 violation, the board noted that "[rjespondent was fully apprized of the nature of the charges against him, offered a full defense against the allegation and has been afforded due process!,] ” citing in In re: Nevitte, 02-1962 (La.9/30/02), 827 So.2d 1135.
      Along the same line, in defense of the charges, respondent claimed that he made the copied files available to his clients at a cost of $1,975.46. In light of such, the committee requested the parties brief the issue of whether a lawyer could require payment of copying costs before delivering a client file. The briefs indicated that, between the filing of the formal charges and the date of the hearing, Rule 1.16(d) had been amended in May 2001 to add the statement "[t]he lawyer may retain a copy of the file hut shall not condition release over issues relating to the expense of copying the file or for any other reason.” Respondent argued the rule was inapplicable since the formal charges and his misconduct took place before the amendment. However, the committee pointed out respondent did not turn the file over until three months after the formal hearing and, as such, he engaged in misconduct after the effective period of the amendment. Thus, the committee concluded respondent still violated Rule 1.16(d).

      . Respondent has a prior disciplinary record consisting of three private reprimands and two admonitions. As to the reprimands: 4/9/85 COPR# 7711 (communicating with an adverse party represented by counsel); 1/28/87 COPR# 8521-A (submitting a false affidavit in litigation); and 1/17/88 COPR# 8988-A (collecting a $1,500 unearned fee). As to the admonitions: 5/20/99 99-ADB-034 (failure to pay $619 due to a third-party attorney); 2/15/00 00-ADB-007 (failure to pay $270 owed to the Louisiana Attorney Disciplinary Board).

      . Respondent was admitted to the practice of law in 1973.

      . There is a common misconception in the disciplinary system, which is sometimes reflected in the ODC’s formal charges, that a greater number of rule violations will result in a harsher sanction. However, the jurisprudence of this court establishes that no such formula exists. In assessing discipline, this court looks to the nature of the conduct rather than the numerical amount of rule violations.

      . On May 24, 2001, we amended Rule 1.16(d) to add language making it clear that the lawyer “shall not condition release over issues relating to the expense of copying the file or for any other reason.” This language did not create a substantive change, but simply clarified the existing requirements of the rule.


author: CALOGERO, Chief Justice.

text:
    Sid HEBERT, Sheriff v. Katie M. HOLLIER, et al.
    No. 2006-C-1077.
    Supreme Court of Louisiana.
    March 9, 2007.

      Mayhall & Blaize, Gary Blaize, Jr., for Applicant.
    Joseph L. Ferguson, Landry, Watkins, Repaske & Breaux, Edward Paul Landry, New Iberia, Larry James Murdock, in proper person; P. Charles Calahan, in proper person, for respondent.
   CALOGERO, Chief Justice.

1 iThis litigation arises out of a dispute over a 30-acre tract of land located south of New Iberia, Louisiana. We granted this writ to determine whether the court of appeal erred in its decision ordering the cancellation and rescission of the sheriffs tax redemption certificate regarding the property. For the following reasons, and upon finding the court of appeal reached an erroneous result, we reverse.

On September, 4, 2002, Defendant, Ms. Katie Marie Hollier purchased from 96-year old Ms. Willie Mae Waters Barnette, her ownership interest in the disputed tract for the sum of $3,762.00. The sale was then recorded in the Iberia Parish conveyance office on September 17, 2002. About nine months later, on June 30, 2003, Defendant, Mr. Troy Arceneaux, purchased the same property at a tax sale and paid the appropriate unpaid taxes for the years 2002, 2003 and 2004. Mr. Arcen-eaux later testified at trial that he believed he would be acquiring clear and entire ownership of the property by paying one hundred percent (100%) of the delinquent | ¡.property taxes.

On December 13, 2004, Mr. Joseph Sterling Davis, II, for $10 and other consideration, purchased the same 30-acre tract from Mr. Larry James Murdock who had purportedly acquired the property through thirty-year acquisitive prescription. This transfer was by cash sale, notarized by Davis’s attorney, Mr. P. Charles Calahan, and recorded on December 23, 2004. That same day, December 23, 2004, Calahan redeemed the property at the Iberia Parish Sheriffs Office. Neither Calahan nor Mr. Raymond Beinvenue, the Deputy Tax Collector, could say for sure whether Cala-han had, at any time, identified the person for whom he was attempting to redeem the property. Beinvenue admits that he never specifically asked Calahan on whose behalf Calahan was redeeming the property. Additionally, although Beinvenue stated there is a process that is normally followed, he did not follow it in this case because he assumed Calahan was redeeming the property for the tax record owner. In line with his assumption, Beinvenue issued the certificate of redemption to “David Waters Estate c/o Katie Marie Hollier,” the tax record owners. He then mailed a refund check to Arceneaux, who had previously paid the taxes. The check directed to Arceneaux was subsequently returned with a notation “undeliverable.”

After learning of the ownership dispute between the parties, Plaintiff, Sheriff Sid Hebert, moved to rescind the tax redemption on January 14, 2005, naming Hollier, Arceneaux and Calahan as defendants. Sheriff Hebert claimed that he wanted to rescind the tax redemption deed issued to Calahan “out of an abundance of caution so as not to ‘knowingly, or with reckless disregard, impinge upon anyone’s property | arights without due process of law.’ ” Hollier and Arceneaux, together, then filed an answer denying that Calahan had acted for either of them in redeeming the property on February 10, 2005. Furthermore, Hollier and Arceneaux claimed the property had been improperly redeemed “in the name of someone who had no vested interest in the property as an heir, legatee, creditor or otherwise.” Presumably that pleading was referring to Davis or Mur-dock. Their answer also contained a third-party demand against Murdock and Davis, seeking to have the redemption by Cala-han rescinded.

On April 15, 2005, the trial court rendered a judgment and issued written reasons denying the Sheriffs motion to rescind the tax redemption. That judgment was signed on May 25, 2005. Only Hollier and Arceneaux appealed from the trial court’s denial of the Sheriffs motion to rescind, presumably because they thought that judgment, refusing to rescind the tax redemption, would be detrimental to their interests. The court of appeal reversed the trial court judgment, and found the redemption should be invalidated because Davis did not have a recorded interest in the property at the time Calahan made payment for redemption of the property. The court of appeal, relying on La. R.S. 47:2224, found the redemption certificate issued by the Sheriff was legally flawed because Calahan was not acting on behalf of an “owner, or any person interested personally or as heir, creditor, or otherwise.”

LAW AND DISCUSSION

Davis, the applicant in this case, sought a writ from this court which we granted. Hebert v. Hollier, 06-1077 (La.11/03/06), 940 So.2d 647. He argues the court of appeal erred in reversing the decision of the trial court and holding that the tax redemption was invalid. Further, Davis claims that both lower courts erred in relying on La. R.S. 47:2224, which, he contends, is not applicable to the instant case.

| ¿The issue before this court is simply the legality of the tax redemption, not the ownership of the property in question. The court of appeal’s assessment of this issue was inaccurate. In making its determination, the court of appeal focused on whether Davis was a record title owner on December 23, 2004, the date the property was redeemed. Finding that Davis was not a record title owner on that date, the court of appeal determined that the redemption issued by the Sheriff was legally flawed. Furthermore, the court of appeal relied on La. R.S. 47:2224, which is not applicable to this situation because that statute addresses property adjudicated to the state.

For purposes of our decision today, whether Davis was or was not a record title owner on December 23, 2004, makes little difference. The tax redemption was valid upon the payment of taxes by anyone for any reason and the consequence of such payment is that it inures to the benefit of the record title owner. In this case, that was Hollier. More precisely stated, a person redeeming property need not have a recorded interest in the property being redeemed; however, when the property is redeemed, the tax sale is cleared from the title of the record owner.

The trial court’s refusal to invalidate the redemption because of its finding that anyone could legally redeem the disputed property, was incorrectly reversed by the | r,court of appeal. Citing prior jurisprudence from this court and other courts, the trial court found that the courts have historically recognized that “any one may, for the advantage of the owner, as negotiorum gestor, make payment for him of the redemption money, even without his knowledge.” State ex rel. Busha’s Heirs v. Register of Conveyances et al., 36 So. 900, 113 La. 93 (La.1904); Bentley v. Cavallier, 46 So. 101, 121 La. 60 (La.1908); and Richards v. Nylka Land Co., 79 So. 208, 143 La. 650 (La.1918); See also Gulf Oil Corp. v. Olivier, 412 F.2d 938 (5th Cir.1969) (husband allowed to redeem property in name of wife without allegation he is acting on her behalf); and Hayes v. Fridge, 101 So. 270, 156 La. 932 (La.1924) (mere possessor as owner, without perfect title was allowed to redeem property). After reviewing the relevant jurisprudence, the trial court opined “the issuance of the Certificate of Tax Redemption in the name of the tax record owner, Hollier, was in the spirit of law and jurisprudence.”

We agree with the decision of the trial court. That decision is in keeping with the relevant statute in this case, La. R.S. 47:2222. La. R.S. 47:2222 addresses redemption of property adjudicated to a tax purchaser and has no requirement that the redeemer have a record title interest in the property before redeeming the property for the delinquent taxes. To the contrary, the language of La. R.S. 47:2222 is centered around the payment required for the redemption, not the person who is actually redeeming the property by paying the delinquent taxes. An examination of La. R.S. 1^47:2221, including Section 25 of Article VII of the Louisiana Constitution of 1974, yields the same conclusion. These provisions are quite clear as to how payment for redemption is to be made; but they do not specify the person or persons who may redeem property sold at a tax sale to a party other than the state. Finding no such provision by the legislature, we hold there is no prohibition against an interested person, or any person for that matter, making payment for redemption of property sold at a tax sale to a party other than the state; however, the effect of such redemption, inures to the benefit of the tax record owner.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and the judgment of the trial court denying the Motion to Rescind the Tax Redemption is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

JOHNSON, J., concurs.

       Retired Judge Philip C. Ciaccio, ad hoc, sitting for Traylor, J., recused.

      .Ms. Hollier acquired only the approximate ten-percent ownership interest held by Ms. Barnette. At oral arguments, counsel for the respondents indicated that there is an unknown number of heirs who could possibly have rights in or to the disputed property.

      . Although the relationship, between Ms. Hol-lier and Mr. Arceneaux is unclear, we do know that Mr. Arceneaux was employed by the same bank as Mr. Don Hollier, the father of Ms. Hollier. The parties admit that Mr. Hollier did run a property search at the bank, which apparently alerted the parties to the ownership interest held by Ms. Barnette.

      . This would seem to indicate that Arceneaux, therefore, never actually received notice of the refund; yet, Arceneaux testified that he called Beinvenue to ask who had redeemed the property. Beinvenue testified that he twice telephoned Calahan to ask for whom he had acted, but Calahan never returned his calls.

        . Hebert v. Hollier, 2005-1136 (La.App. 3 Cir. 3/1/06), 925 So.2d 666.

      . The ownership of the tract is a separate and distinct issue which is the subject of pending litigation at the lower court level.

      . The court of appeal appears to have mistakenly relied on an incorrect date of recordation of the sale between Murdock and Davis. The court of appeal variously noted the date of recordation as being "February 22, 2005” and "February 23, 2004.” After the decision rendered by the court of appeal, Davis’s attorney, Calahan, filed a motion to supplement and correct the record on appeal. The motion stated the correct date of recordation of the act of cash sale between Davis and Mur-dock was December 23, 2004, not February 23, 2005. The corrected act was certified by Clerk of Court, Mr. Michael Thibodeaux. Accordingly, it appears that December 23, 2004 has been accepted as the true date of recordation. The court of appeal apparently chose not to act on the motion, instead denying Davis's application for rehearing. Notwithstanding, we agree with the trial court that the date of recordation of the sale is not germane to the determination of whether the tax redemption was invalid.

      . La. R.S. 47:2224 provides, in pertinent part:
      "If the owner or any person interested personally or as heir, legatee, creditor or otherwise, in any lots or lands bid in for and adjudicated to the state ...” (emphasis added)

      . La. R.S. 47:2222(C) reads as follows:
      The payment required for the redemption of immovable property adjudicated to a purchaser for taxes may be made either to the purchaser or to the tax collector making the sale or to his successor in office. Upon payment to the tax collector making the sale, or to his successor in office, the tax collector or his successor in office, as the case may be, shall immediately execute a certificate of redemption of the property sold, in which receipt of the redemption payment shall be acknowledged, and the property shall be declared duly redeemed to the tax debtor; it shall be the further duty of the tax collector, or his successor in office, to deliver the said certificate of redemption to the party redeeming the property and to cause notice of the redemption to be entered on the records of his office. All fees and costs in connection with the issuance of the certificate of redemption shall be paid by the party redeeming.

      . La. R.S. 47:2221 reads:
      Property sold at a tax sale shall be redeemable in accordance with Section 25 of Article VII of the constitution of 1974. Nothing in this Section shall be construed so as to affect in any way, the principle that as to a tax debtor-owner in possession, prescription does not begin against him and in favor of the tax title purchaser until such tax debtor-owner has been first dispossessed.


text:
    David BARRAS, et al. v. A.O. SMITH CORPORATION, et al.
    No. 2008-CC-0473.
    Supreme Court of Louisiana.
    March 3, 2008.
   In re BOC Group Inc. f/k/a; Aireo Inc.; ESAJB Group Inc.; Hobart Brothers Company; Lincoln Electric Company; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, Nos. 2003-11573, 2004-874; to the Court of Appeal, Fourth Circuit, No. 2008-C-0235.

Granted.

The ruling of the trial court sustaining plaintiffs objection to the testimony of Dr. Gordon Sze is reversed and the trial court is instructed to allow Dr. Sze to testify.

TRAYLOR, J., recused.

KIMBALL, JOHNSON and KNOLL, JJ., would deny.

       Retired Judge Robert J. Klees sitting ad hoc for Traylor, J. recused.


text:
    Noah ANDRE, et al. v. A.O. SMITH CORPORATION, et al.
    No. 2008-CC-0472.
    Supreme Court of Louisiana.
    March 3, 2008.
   In re BOC Group Inc.; Aireo Inc.; ESAB Group Inc.; Hobart Brothers Company; Lincoln Electric Company; TDY Industries Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, Nos. 2003-11573, 2004-874; to the Court of Appeal, Fourth Circuit, No. 2008-C-0235.

Granted.

The ruling of the trial court sustaining plaintiffs objection to the testimony of Dr. Gordon Sze is reversed and the trial court is instructed to allow Dr. Sze to testify.

TRAYLOR, J., recused.

KIMBALL, JOHNSON and KNOLL, JJ., would deny.

       Retired Judge Robert J. Klees sitting ad hoc for Traylor, J. recused.


author: PER CURIAM.

text:
    In re Earl T. LINDSAY, Jr.
    No. 2007-B-1813.
    Supreme Court of Louisiana.
    March 7, 2008.
   ^ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Earl T. Lindsay, Jr., a disbarred attorney.

UNDERLYING FACTS

Respondent was disbarred by this court on December 11, 1989. Louisiana State Bar Ass’n v. Lindsay, 553 So.2d 807 (La. 1989). He has not applied for readmission to the bar since that time.

Between April 1991 and May 2005, respondent appeared as defense counsel in forty-five traffic cases pending in the First and Second Parish Courts in Jefferson Parish, Louisiana. Based on its investigation of these matters, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized practice of law), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

| .DISCIPLINARY PROCEEDINGS

Respondent answered the formal charges, admitting to the allegations and requesting a hearing in mitigation. Despite adequate notice, respondent failed to appear at the hearing.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee found the ODC presented clear and convincing evidence that respondent violated the Rules of Professional Conduct as alleged in the formal charges. For his intentional misconduct, the committee recommended that respondent be permanently disbarred.

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

Disciplinary Board Recommendation

After review of the record, the disciplinary board found no manifest error in the hearing committee’s findings, and agreed that respondent violated the Rules of Professional Conduct as set forth in the formal charges. The board found that respondent intentionally engaged in the practice of law in violation of duties owed to the public, the legal system, and the legal profession. The evidence shows that numerous clients, courts, and attorneys were deceived by respondent stemming from his unauthorized representation of clients over a period of fourteen years.

The board found the following aggravating factors present: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, ^vulnerability of the victims, substantial experience in the practice of law (admitted 1978), and illegal conduct. No mitigating factors were found by the board.

Based on these findings and this court’s prior jurisprudence, the board adopted the committee’s recommended sanction of permanent disbarment, and further recommended that respondent be assessed with all costs of these proceedings.

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

DISCUSSION

Bar disciplinary matters fall 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 (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 record in this matter supports the factual findings of the hearing committee and the disciplinary board. Clearly, respondent violated the Rules of Professional Conduct by knowingly and intentionally practicing law after his disbarment.

Having found professional misconduct, we now turn to a discussion of an appropriate sanction. 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).

It is well settled that the unauthorized practice of law by a suspended or disbarred attorney is very serious misconduct. In re: Jackson, 02-3062 (La.4/9/03), 843 So.2d 1079. 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).

In the instant case, the sheer number of instances of unauthorized practice of law over a lengthy period of time illustrates that respondent has made a conscious decision to practice law despite the revocation of his license by this court. Numerous aggravating factors are present, including prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law, and illegal conduct. We are unable to discern any mitigating factors from the record. Unquestionably, therefore, respondent’s misconduct warrants disbarment.

The sole remaining issue presented for our consideration is whether respondent’s conduct is so egregious that this disbarment should be made permanent. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful |sinformation concerning the types of conduct we might consider worthy of permanent disbarment. See In re: Yaeger, 05-0035 (La.3/18/05), 897 So.2d 571.

For purposes of the instant case, Guidelines 8 and 9 are relevant. Those guidelines detail the following conduct:

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 or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Guideline 8 is clearly implicated by respondent’s failure to cease the practice of law after he was disbarred in 1989. Likewise, Guideline 9 is applicable, as respondent’s unauthorized practice of law is serious attorney misconduct which was preceded by his disbarment for prior instances of serious attorney misconduct.

Considering these guidelines together with the indisputable evidence of respondent’s fundamental lack of moral character and fitness, we can conceive of no circumstance under which we would ever grant readmission to respondent. See In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503. Accordingly, we will accept the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that the name of Earl Thomas Lindsay, Jr., Louisiana Bar Roll number 8579, be stricken from the roll [ fiof attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The charges for which respondent was disciplined involved numerous instances of serious misconduct, including commingling and conversion of client funds.

      . La. R.S. 37:213 makes it a crime to engage in the unauthorized practice of law.


text:
    Ashton R. O’DWYER, Jr. v. Ernest L. EDWARDS, Joseph L. Shea, Jr., and Charles R. Talley.
    No. 2007-C-2488.
    Supreme Court of Louisiana.
    March 7, 2008.
   PER CURIAM.

The plaintiff in this matter filed an application for supervisory writs on December 28, 2007. This Court found that his application contained language which was discourteous and insulting and violated Supreme Court Rule 7, Section 7, and returned the application to plaintiff, allowing him 15 days to file a supplemental writ application conforming with all Supreme Court Rules and applicable laws. Plaintiff has failed to timely file such a supplemental writ application.

Since there has been no writ application filed in conformity with Supreme Court Rules and applicable laws, there is no writ application for this Court to consider. Further, because the time limits for filing a proper writ application have passed, this Court will not consider any future application from plaintiff and the Court of Appeal judgment in this case is now final.

WRIT APPLICATION NOT CONSIDERED.

      . Kimball, J., recused.


text:
    In re Kathy R. McCoy O’QUINN.
    No. 2007-B-2018.
    Supreme Court of Louisiana.
    March 7, 2008.
   | .ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Kathy R. McCoy O’Quinn, an attorney licensed to practice law in the States of Louisiana and Arizona, based upon discipline imposed by the Supreme Court of Arizona.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 2005, the State Bar of Arizona charged respondent with multiple counts of attorney misconduct under the Arizona Rules of Professional Conduct. The formal charges generally involved trust account violations and a pattern of neglect by respondent of client matters. Furthermore, in each instance respondent failed to cooperate with the State Bar in its investigation. A hearing officer conducted a hearing in the matter, following which the parties reached an agreement for consent discipline in which respondent stipulated to most of the relevant facts and alleged rule violations. The hearing officer adopted the stipulated facts and recommended a six month and one day suspension, two years of probation with the State Bar’s Member Assistance Program (MAP), and restitution. On review, the Disciplinary Commission of the Supreme Court of Arizona accepted the hearing officer’s findings of fact, conclusions of law, and recommendation of discipline. Neither party sought review hpf the Commission’s decision; however, the Supreme Court of Arizona exercised its right of sua sponte review to modify a portion of the sanction. On September 26, 2006, the Supreme Court of Arizona ordered that respondent be suspended from the practice of law for six months and one day and that she pay restitution. In re O’Quinn, No. SB-06-0122-D on the docket of the Supreme Court of Arizona. The court further ordered that respondent would not be placed on probation with MAP during the period of her suspension; rather, respondent’s continued participation in MAP would be imposed as a condition of reinstatement. In a separate judgment rendered on May 22, 2007, the court imposed a six-month suspension, to run concurrently with the suspension in the prior matter, for additional attorney misconduct by respondent. In re O’Quinn, No. SB-07-0060-D on the docket of the Supreme Court of Arizona.

After receiving the Arizona judgments, the ODC filed a motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the motion was a certified copy of the orders of the Supreme Court of Arizona. On October 15, 2007, this court rendered an order giving respondent thirty days to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted and the reasons for that claim. Respondent timely filed an opposition with this court.

■ DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions Rof paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

In the instant case, respondent has made no showing of infirmities in the Arizona proceeding, nor do we discern any from our review of the record. Furthermore, we find no extraordinary circumstances which warrant deviation from the sanction imposed by the Supreme Court of Arizona. We have held that “only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction.” In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461. Considering that we share authority over respondent with Arizona, we will defer to that state’s determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we |4share supervisory authority”). Accordingly, we will impose reciprocal discipline of a six month and one day suspension pursuant to Supreme Court Rule XIX, § 21. Additionally, in the event respondent applies for reinstatement in Louisiana after becoming eligible to do so, we specifically direct that she provide competent proof of her continued participation in an appropriate lawyer’s assistance program.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Kathy R. McCoy O’Quinn, Louisiana Bar Roll number 14195, be suspended from the practice of law for six months and one day.