text:
    Stephen ZIEGLER and Sherry Ziegler, Appellants, v. TENET HEALTH SYSTEMS, INC. d/b/a Hollywood Medical Center, Appellee.
    No. 4D06-1410.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      Richard H. McDuff, Tamara M. Serud-ders, and Chris Ambrosio of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., Fort Lauderdale, for appellants.
    Howard L. Citron of Schell, Mitchel & Cooley, L.L.P., Weston, for appellee.
   WARNER, J.

Appellants, Stephen and Sherry Ziegler, challenge the entry of a final summary judgment against them in them negligence claim against appellee, a hospital. The trial court determined that the hospital had no duty of care to a non-patient for injuries suffered when he fainted after observing and helping his wife during her emergency room treatment. We affirm.

Appellant Stephen Ziegler received a telephone call from his wife advising him that she was at the hospital after accidentally cutting herself. Ziegler immediately went to the Emergency Room of Hollywood Medical Center. Hospital employees directed him to the treatment area where his wife was receiving treatment. She was in a highly agitated state, withdrawing her hand while the nurse was trying to dress the wound.

When Ziegler saw that the nurse was having trouble treating his wife, he got up onto the gurney, put one arm around his wife’s waist to hold her steady, and held out her injured hand so that the nurse could treat the finger. As he did so, he viewed her injury, which appeared to him as though she had severed the top part of her finger.

Once the nurse finished applying the dressing, a physician’s assistant came in and began applying a second dressing. As that occurred, Ziegler said that he felt hot. The physician’s assistant told Ziegler he should go back to the waiting room. After getting off the gurney, Ziegler started to walk away and fainted, falling face-first to the floor and severely injuring himself. According to Ziegler's medical expert, the proper course of action when someone is experiencing a vasovagal reaction, or “fainting spell,” is to either 1) direct the person to lie down, 2) tell the person to sit down with his head between his legs, or 3) allow the person to stand up with the assistance of someone else. Ziegler should not have been asked to stand up unassisted.

Ziegler filed suit against Tenet Health Systems (“Tenet”), the owner of the hospital, claiming that the hospital owed a duty to protect him from fainting once he was invited to participate in the care and treatment of his wife. Ziegler alleged that he had been encouraged to assist in his wife’s treatment and, during that time, he communicated to the hospital staff that he felt ill. However, “[ijnstead of ensuring that he receive assistance or aid, he was instructed by the staff to leave the treatment room unassisted.” Further, Ziegler maintained that it was reasonably foreseeable that a person could become ill from participating in the care and treatment of his wife. On these facts, Ziegler claimed that the hospital breached a duty to Ziegler by failing to protect him from foreseeable harm that was likely to result from his participation in his wife’s care and treatment.

Tenet moved for summary judgment on two grounds. First, Tenet argued that Ziegler’s claims sounded in medical malpractice and were barred under the limitations period of the statute. Second, Tenet claimed that the risk of fainting was “open and obvious” and that it owed no duty to Ziegler. While at first the trial court determined that the action was grounded in medical negligence, on rehearing it reconsidered and determined that Tenet owed no duty to Ziegler. It entered summary judgment. In this appeal, we consider only whether Tenet owed a duty to Ziegler, not whether the claim was one of medical malpractice.

On appeal, the appellants argue that a duty of care to Ziegler arose by virtue of his participation in the treatment of his wife’s injury and by Tenet’s employee directing him to leave the emergency room unassisted after being put on notice that Ziegler was experiencing symptoms that put him at risk of injury. Appellants argue that when the physician’s assistant directed Ziegler to leave the room, which required him to walk unassisted, the appel-lee created a foreseeable zone of risk which gave rise to a duty of care. Tenet asserts that no such duty exists.

Duty is the standard of conduct given to the jury for gauging the defendant’s factual conduct, and the issue of whether a duty exists is a question of law. McCain v. Florida Power Corp., 593 So.2d 500, 502-03 (Fla.1992). The duty element of a negligence claim focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. Id. at 502.

“Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” Kaisner v. Kolb, 543 So.2d 732, 735 (Fla.1989). Legislative enactments and case law “are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care.” McCain, 593 So.2d at 503. Instead, “each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result.” Id. “Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” Henderson v. Bowden, 737 So.2d 532, 535 (Fla.1999).

Ziegler relies on Henderson to support his contention that Tenet owed him a duty of care. In Henderson, four friends left a party after all of them had been drinking. The car owner, Lyons, asked one of his friends to drive. The vehicle was stopped by sheriffs deputies who arrested the driver for driving while intoxicated. Although Lyons allegedly told the deputies that he was intoxicated, he claimed that one of the deputies directed him to drive to a nearby convenience store. The deputy allegedly told Lyons that he would follow Lyons there. After waiting for a while at the convenience store for the deputy, Lyons left and subsequently collided with a cluster of trees, killing his passengers. The passengers’ estates sued the sheriff alleging that the sheriffs deputies owed the deceased passengers the duty to use reasonable care which they breached by allowing an intoxicated person to drive the vehicle after the DUI stop. After the district court reversed a summary judgment in favor of the sheriff, the supreme court took jurisdiction. The supreme court held that by directing an intoxicated Lyons to drive to a convenience store, the sheriffs deputies created a foreseeable zone of risk to the passengers, thereby giving rise to a legal duty. Id. at 536.

The Henderson court relied upon the principle that while generally there is no duty to go to the assistance of a person in peril, “there is at least a duty to avoid any affirmative acts which make his situation worse.” Id. at 537 (quoting Prosser and Keeton on the Law of Torts § 53, at 378 (5th ed.1984)). The court emphasized that its holding was not based on the issue of whether the passengers were in the “custody” of the deputies; rather, the holding was based on the fact that the deputies’ actions placed the passengers in danger. Id. at 536. See also Lemay v. Kondrk, 923 So.2d 1188 (Fla. 5th DCA 2006) (reversing summary judgment in favor of a defendant police officer where the police officer ordered two drunk men to leave a convenience store and walk in opposite directions on an unlit highway, and one of the men was hit by a car and killed).

Ziegler attempts to analogize this case to Henderson. Just as a passenger in Henderson was directed to drive in an impaired state, Ziegler argues that the physician’s assistant “directed” him to walk unassisted to the waiting room in an “impaired” state. Henderson, however, involved police officers giving orders to intoxicated citizens. Whether a person is in custody or not, a police officer exerts a high degree of authority when he or she “directs” someone to do something. Furthermore, as our supreme court carefully explained in Henderson, “the sheriffs deputies created a risk that, but for the roadside detention and decisions made during that detention, would not have otherwise existed.” 737 So.2d at 537. The same cannot be said for the medical assistant’s mere statement to Ziegler that he should go to the waiting room upon learning that Ziegler felt hot. The assistant’s statement did not create a zone of risk.

While there is no Florida ease which squarely addresses the duty a hospital owes to a non-patient permitted to accompany a patient during emergency room treatment, there are several out-of-state cases which address this issue more directly, and those cases are split. In Sacks v. Thomas Jefferson University Hospital, 684 F.Supp. 858 (E.D.Pa.1988), the plaintiff brought her daughter to the hospital emergency room seeking treatment for a wound to the child’s forehead which required stitches. The hospital admitted the child for treatment, and the plaintiff was permitted to remain with her daughter in the treatment room. The doctor on duty, while engaged in suturing the child’s forehead, asked the plaintiff to hold her daughter’s head. The plaintiff did as she was requested. While the plaintiff was observing the suturing, the plaintiff told the defendant’s agent that she felt faint and was going to leave the treatment room. While exiting the room, the plaintiff fainted and fell to the floor, sustaining injuries. The federal court, applying Pennsylvania law, held that the hospital could not be held liable for causing the plaintiff to faint or for failing to prevent her fall. The court reasoned:

At no time did the hospital agree to, or undertake to, accept the plaintiff as a patient, nor was a physician-patient relationship ever established. Only the plaintiffs daughter was admitted to the defendant’s emergency room. Mrs. Sacks voluntarily entered the treatment room to witness the suturing that had been sought by her for her daughter. By doing so, she accepted the risk that she would witness events or conditions inherent in the medical treatment which could upset her. She was not required to be present nor was she required to hold her daughter’s head. Indeed, she abandoned her daughter to leave the room when she felt faint.

Id. at 859. See also Walters v. St. Francis Hosp. & Med. Ctr., Inc., 23 Kan.App.2d 595, 932 P.2d 1041 (1997) (finding the danger of fainting in an emergency room is open and obvious and thus does not require a hospital to warn an invitee that he or she may have an adverse reaction from witnessing a medical procedure). Factually this case is on all fours with Sacks.

Ziegler attempts to distinguish Sacks, noting that there the hospital did not “direct” the plaintiff to get up and walk unassisted. This, we think, is a meaningless distinction. In both Sacks and the present case, the medical professionals were on notice that the plaintiffs were not feeling well. Moreover, at no time was Ziegler under the control of the hospital in this case. That the medical assistant suggested to Ziegler that he might want to leave the emergency area should not be the determining factor for the hospital’s liability.

A Washington court likewise confronted this issue and refused to find liability on the part of the hospital. In Zenkina v. Sisters of Providence in Washington, Inc., 83 Wash.App. 556, 922 P.2d 171 (1996), the plaintiff was invited into the treatment room by hospital staff to translate while her nephew, who spoke little English, was getting stitches. The - doctor asked the plaintiff to hold the boy’s hands to restrain the child in case he attempted to move suddenly. When the doctor opened the boy’s wound to clean it, the plaintiff fainted, striking her head on the floor. The court concluded that the hospital had neither a duty to prevent the plaintiff from fainting, or to warn her of the risk:

Although the record reflects that perhaps a dozen relatives accompanying patients to this emergency room faint or become lightheaded in the course of a year, so that the risk of relatives fainting is certainly foreseeable, the risk is also obvious. To require hospitals to prevent relatives from fainting would be to require hospitals to bar them from the emergency room altogether. To require hospitals to warn relatives of the risk that they might faint at the sight of blood or at the sight of some medical procedure such as suturing or the giving of an injection would be to require hospitals to warn of a risk that is so well known as to require no warning at all. We decline to impose a duty to warn of a risk as obvious as this one.

Id. at 176 (emphasis in original).

One case, however, has held that a hospital emergency room does have a duty to protect a non-patient from fainting once the hospital invites the non-patient to participate in the care and treatment of the patient. See O’Hara v. Holy Cross Hosp., 137 Ill.2d 332, 148 Ill.Dec. 712, 561 N.E.2d 18 (1990) (holding that a duty of care arose when the plaintiff was asked to wipe Novocain from her son’s mouth during treatment of the boy’s facial wound and plaintiff subsequently fainted, causing injury). Ziegler urges us to adopt O’Hara’s “participation in patient care” exception to the general rule that the hospital owes no duty to protect a non-patient bystander from fainting. We decline to adopt such a rule.

Because the hospital owed no duty to protect Ziegler from fainting, we affirm the judgment of the trial court.

GROSS and TAYLOR, JJ., concur.

      . Mr. Ziegler’s wife also brought a claim for loss of consortium.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    MEMORIAL HEALTH SYSTEMS, INC., et al., Appellants, v. The ESTATE OF Joe Wiley TEASLEY, Sr., etc., Appellee.
    No. 5D05-3494.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.
    Marks Hicks, Dinah Stein and Richard Warren, of Hicks Kneale, P.A., Miami, and Michelle Perez-Sotolongo and Mary Jaye Hall, of McEwan, Martinez Dukes, P.A., Orlando, for Appellants.
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., Tampa, and Brian L. Thompson and Blair N. Mendes, of Wilkes McHugh, P.A., Tampa, for Appel-lee.
   GRIFFIN, J.

Appellant, Memorial Health Systems, Inc., appeals from a final judgment entered after jury trial in favor of the Estate of Joe Wiley Teasley, Sr. We find no error and affirm in all respects save one. Memorial correctly argues that there was no evidence in the record to support the amount of the jury’s award of $50,000 for Mr. Teasley’s hospitalization and care. Accordingly, we reverse and remand to the trial court with instructions to amend the final judgment, reducing this item of damage to the sum of $25,811.45.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and TORPY, JJ., concur.


author: THOMPSON, J.

text:
    Roseme GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3289.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.
    James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   THOMPSON, J.

AFFIRMED. See Battle v. State, 911 So.2d 85, 89 (Fla.2005) (noting fundamental error is that which reaches down into the validity of the trial itself such that a guilty verdict could not have been obtained without the assistance of the alleged error); McCray v. State, 416 So.2d 804, 806 (Fla.1982) (stating “the fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance”).

ORFINGER and TORPY, JJ„ concur.


author: SAWAYA, J.

text:
    R.R., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3526.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.

      James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   SAWAYA, J.

R.R. appeals the order establishing $1000 as the amount of the public defender lien for legal services rendered. The court established that amount in accordance with section 27.5304(3), Florida Statutes, which sets $1000 as the maximum fee for court-appointed counsel in juvenile cases. R.R. contends, and we think rightly so, that because no inquiry was made as to the attorney’s hourly rate or amount of time spent on the case, the lien is improper.

The Legislature has bestowed upon the courts the responsibility to determine the value of services rendered by a public defender to a criminal defendant. See § 938.29(l)(a), Fla. Stat. (2007) (“A defendant determined to be guilty of a criminal act ... and who has received the assistance of the public defender’s office, a special assistant public defender, or a conflict attorney shall be liable for payment of attorney’s fees and costs. The court shall determine the amount of the obligation.”); § 938.29(5), Fla. Stat. (2007) (“The court having jurisdiction of the defendant-recipient shall ... determine the value of the services of the public defender.... ”). The amount of the obligation cannot be based on an arbitrary figure; rather, it must be supported by an adequate factual basis. See Rivers v. State, 677 So.2d 53 (Fla. 1st DCA 1996); Swift v. State, 638 So.2d 193, 193 (Fla. 5th DCA 1994) (“It appears that, in part, the lower court’s cost assessments and public defender’s lien were imposed without following proper procedure or without adequate factual or legal basis shown in the record. Accordingly, we affirm the conviction but are forced to vacate the sentence and remand to the lower court to properly assess costs and fees.”); see also Q.E.L. v. State, 700 So.2d 86 (Fla. 2d DCA 1997); Hankerson v. State, 464 So.2d 700 (Fla. 2d DCA 1985). This generally requires that the amount of the lien be established by applying a reasonable hourly rate to the time the attorney spent on the case. Gonse v. State, 713 So.2d 1114, 1115 (Fla. 2d DCA 1998) (“The trial court improperly imposed a $1,000 public defender lien without any indication of defense counsel’s hourly rate or time spent on the case.”); Gilchrist v. State, 674 So.2d 847, 848 (Fla. 2d DCA 1996) (“[T]he record contains no basis for the $1,000 fee — nothing reveals the hourly rate or time spent on the ease.”). Otherwise, the amount of the lien is arbitrary and the order must be reversed and remanded for a new disposition hearing.

In this ease, there was no evidence introduced to establish a reasonable hourly rate or the time spent on the case by R.R.’s public defender. Accordingly, the public defender lien is stricken and the cause is remanded for an appropriate hearing at which the trial court can properly determine the amount. See Fleming v. State, 674 So.2d 795 (Fla. 5th DCA 1996); P.J. v. State, 670 So.2d 196 (Fla. 5th DCA 1996); Swift.

LIEN STRICKEN; REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . The trial court initially imposed a lien in the amount of $2,500. R.R. subsequently filed a motion to correct the amount, arguing the trial court simply awarded a flat fee without inquiring whether the amount represented the actual value of the services rendered by the public defender. The court granted that motion and, without considering any evidence to establish the reasonable hourly rate or the amount of time spent on the case, reduced the lien to $1,000 in accordance with section 27.5304(3), Florida Statutes, which sets the maximum fee for court-appointed counsel in juvenile cases.


author: PER CURIAM.

text:
    Charles DANNENBERG, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-676.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.
    Charles Dannenberg, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the trial court’s denial of Dannenburg’s motion for jail time credit because the motion was facially insufficient. However, we caution the trial court that it is the responsibility of the court, not the Lake County jail, to calculate jail time credit.

AFFIRMED.

GRIFFIN, TORPY and EVANDER, JJ., concur.


author: ORFINGER, J.

text:
    Larico Alexander CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D06-680, 5D06-681.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Larico Alexander Cummings appeals his convictions for trafficking in cocaine, possession of a firearm by a convicted felon, driving on a suspended license as a habitual offender, as well as the revocation of his probation for previous crimes. We affirm.

The record supports the trial court’s conclusion that the arresting officer had a reasonable basis to stop the vehicle Mr. Cummings was driving for a civil traffic infraction. While we agree with Mr. Cummings that his temporary detention for the purpose of writing a traffic citation may have turned into a seizure of his person without probable cause to arrest, we conclude that it was not error to deny the motion to suppress as the inevitable discovery doctrine controls.

We explained the inevitable discovery doctrine in Hatcher v. State, 834 So.2d 314, 317-18 (Fla. 5th DCA 2003), as follows:

The inevitable discovery doctrine was adopted by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), as an exception to the fruit of the poisonous tree doctrine. Maulden v. State, 617 So.2d 298 (Fla.1993). The inevitable discovery doctrine allows evidence obtained as the result of unconstitutional police procedure to be admitted if the evidence would ultimately have been discovered by legal means. The Court reasoned that “[ejxclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Nix, 467 U.S. at 446, 104 S.Ct. 2501. The Florida Supreme Court and this court have embraced the doctrine. Jeffries v. State, 797 So.2d 573 (Fla.2001); Maulden; Craig v. State, 510 So.2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); State v. Walton, 565 So.2d 381 (Fla. 5th DCA 1990); State v. McLaughlin, 454 So.2d 617 (Fla. 5th DCA 1984).
The inevitable discovery doctrine requires the state to establish by a preponderance of the evidence that the police ultimately would have discovered the evidence independently of the improper police conduct by “means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.” Craig, 510 So.2d at 863 (citations omitted). “In order to apply this doctrine, there does not have to be an absolute certainty of discovery, but rather, just a reasonable probability.” State v. Ruiz, 502 So.2d 87, 87 (Fla. 4th DCA 1987) (citing United States v. Brookins, 614 F.2d 1037 (5th Cir.1980)); see also Jeffries, 797 So.2d at 578 (quoting Ruiz).

(Footnotes omitted).

We conclude that the commission of the traffic offense gave the officer the legal right to stop the vehicle Mr. Cummings was operating and to ask Mr. Cummings for his driver’s license. That stop would have inevitably led to the discovery of his suspended or revoked license, his arrest, and the search of his vehicle where the drugs and gun were found. Consequently, the fact that the seizure of his person may have occurred prior to the officer having probable cause to arrest him is irrelevant. Accordingly, we affirm the trial court’s order denying Mr. Cummings’s motion to suppress.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.


text:
    Issac Richard LEMASTERS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1261.
    District Court of Appeal of Florida, First District.
    May 31, 2007.
    Jack Behr, Public Defender, First Judicial Circuit, and James S. Owens, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal from the judgment and sentence in case number 2006 CF 003218 A in the Circuit Court for Escambia County is granted. The outstanding show cause order regarding jurisdiction in case number 1D07-0377 is hereby discharged and that case shall proceed to a disposition on the merits.

PETITION GRANTED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


author: KIMBALL, Justice. VICTORY, J., WEIMER, J.,

text:
    STATE of Louisiana v. George KING.
    No. 2006-KK-2383.
    Supreme Court of Louisiana.
    April 27, 2007.
    Charles C. Foti, Jr., Attorney General, J. Reed Walters, District Attorney, James Christopher Peters, Assistant District Attorney, for Applicant.
    Law Office of J. Michael Small, J. Michael Small, Katherine Sara Williamson, for Respondent.
   KIMBALL, Justice.

liThe sole issue presented by this case is whether defendant has shown by a preponderance of the evidence that the district attorney has a personal interest in the cause which is in conflict with the fair and impartial administration of justice such that he should be recused pursuant to La.C.Cr.P. art. 680(1). Because we find that the district attorney’s personal animosity toward defendant stemming from the district attorney’s belief that defendant started or spread a salacious rumor about him and a member of his family was a factor in making certain prosecutorial decisions, we believe his ability to fairly and impartially conduct defendant’s trial was called into question. Consequently, we find the district attorney should be recused in accordance with La.C.Cr.P. art. 680(1).

Facts and Procedural History

On October 21, 2003, a LaSalle Parish Grand Jury returned a true bill of | aindictment charging defendant, George King, the Chief of Police for the town of Jena, Louisiana, with malfeasance in office in violation of La. R.S. ÍAIS-Rl). The charges stem from an incident that occurred on October 6, 2003, in which James Robbins, the Mayor of Jena, struck Gary Compton, a member of the Town Council of Jena, twice in the face with a closed fist after a heated verbal exchange. When the incident occurred, the mayor was accompanied by defendant, who allegedly witnessed and participated in the event, yet failed to take any action to prevent its escalation into a simple battery, and failed to make an arrest pursuant to an investigation.

Defendant filed various pre-trial motions that are not relevant here. Eventually, trial was set for August 29, 2005. On August 23, 2005, defendant filed a motion to recuse the district attorney alleging the prosecutor possessed strong personal feelings of animosity towards him that would conflict with the fair and impartial administration of justice. Specifically, defendant alleged the district attorney believed that defendant had either started or spread salacious rumors concerning the personal lives of the district attorney and a member of his family. Defendant further alleged the district attorney’s belief that he had started or spread the rumors had driven the district attorney to proceed with his prosecution instead of perhaps dismissing it as was earlier discussed by defendant’s attorney and the district attorney.

|sOn July 11, 2006, a contradictory hearing was conducted on defendant’s motion to recuse the district attorney. The trial court denied the motion. On defendant’s application, the court of appeal granted a writ and made it peremptory, finding the trial court erred in denying the motion to recuse the district attorney. State v. King, 06-0981 (La.App. 3 Cir. 8/29/06). This court granted certiorari upon the State’s request. State v. King, 06-2383 (La.12/15/06), 944 So.2d 1268.

Discussion

Generally, the district attorney has charge of every criminal prosecution by the state in his district. La. Const, art. V, § 26. See also La.C.Cr.P. art. 61. The district attorney determines whom, when, and how he shall prosecute. La.C.Cr.P. art. 61. Nonetheless, it has long been the rule in Louisiana that the district attorney, as a quasi-judicial officer, must be fair and impartial, and animated by a sense of public duty rather than stimulated by a hope of private gain. State v. Tate, 185 La. 1006, 1019, 171 So. 108 (1936). Thus, La.C.Cr.P. art. 680(1) provides:

A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice[.]

In Plaquemines Parish Com’n Council v. Perez, 379 So.2d 1373 (La.1980), this court held that La.C.Cr.P. art. 680 is not an unconstitutional restriction of the plenary powers granted to district attorneys by La. Const, art. V, § 26 because the recusation provision found in Article 680 is required by the constitutional guarantee of the fair and impartial administration of justice. In reaching this conclusion, the court cited La. Const, art. I, § 2, which provides, “No person shall be deprived of life, liberty, or property, except by due process of law.” Id., 379 So.2d at 1377. Additionally, the court cited La. Const, art. I, § 22, which provides, “All courts shall Lbe open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.” Id., 379 So.2d at 1377-78.

The legislature first provided for the recusation of district attorneys in 1877. Id., 379 So.2d at 1376. At that time, the grounds provided for recusation of a district attorney were specified relationships to an accused or injured party, and prior employment or consultation of the district attorney by the accused party. Id. An additional ground for recusation was added in art. 310 of the 1928 Code of Criminal Procedure such that recusal was required if the district attorney had “a personal interest adverse to the prosecution.” Id.

In Tate, the court ordered recusation under La.C.Cr.P. art. 310 (1928) of a district attorney who was employed as an attorney in several civil suits against the defendant, stating that a district attorney “should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused’s trial fairly and impartially.” Tate, 185 La. at 1020, 171 So. at 112. Subsequently, in State v. Marcotte, 229 La. 539, 86 So.2d 186 (1956), the court followed Tate when it declared improper the trial court’s refusal to hear evidence on a motion to recuse a district attorney for allegedly having a personal interest adverse to that of the prosecution. However, two Justices expressed their disagreement with the | ¿Tate decision. Subsequently, the grounds of re-cusation of a district attorney were placed in La.C.Cr.P. art. 680 and generally followed La.C.Cr.P. art. 310 (1928) and Louisiana jurisprudence. See La.C.Cr.P. art. 680, Comment (b). The former ground of “personal interest adverse to that of the prosecution” was changed to the current language of “personal interest in the cause which is in conflict with fair and impartial administration of justice” to codify the Tate decision and to address its criticism by two of the Marcotte Justices. See id. See also Perez, 379 So.2d at 1377; Charles J. Yeager & Lee Hargrave, The Power of the Attorney General to Supercede a District Attorney: Substance, Procedure & Ethics, 51 La. L.Rev. 733, 746 (1991) (“The ethical ideal of Tate and its codification, article 680, is that of the district attorney as an excellent instrument of the law, who actualizes the law objectively in his professional choices and judgments, but without the influence of personal or self interest in those judgments.”).

This amended language was at issue in Perez. That case involved an alleged theft of public funds by an employee of the Plaquemines Parish Commission Council that was accomplished by the use of forged checks drawn against the Council’s account with the Delta Bank and Trust Company. A special grand jury was convened by the district attorney to investigate the allegations. Plaintiffs, the Council and its president, brought suit to compel the recusation of the district attorney and to enjoin him from taking any action with respect to the investigation of the theft and of the Council. The Council president was the brother of the district attorney. The petition for recusation alleged the district attorney had a disqualifying personal interest in the cause because he was the chairman of the board of directors of the Delta Bank and a major stockholder. The petition also alleged the district attorney was employing the current investigation as a means of gratifying his personal animosity against his brother. In response to the suit, the district attorney filed several exceptions, including an exception of no cause of action.

The court noted it was faced with the difficult issue of whether La.C.Cr.P. art. 680 may be interpreted to apply to an investigation as well as to a prosecution. In analyzing this issue, the court stated:

If plaintiff is charged with a crime, kinship alone will require the recusal of the district attorney, as defendant |fireadily admits. C.Cr.P. 680. Plaintiff has not been charged, arrested, subpoenaed or questioned. Article 680 refers to the matters from which the district attorney may be recused as: the “cause” (C.Cr.P. 680(1)), the “case” (C.Cr.P.680(3)); or a matter in which there is an “accused” (C.Cr.P.680(2)). Here there is no “accused” and no “case”. If there is a “cause,” it is the investigation described by plaintiff. Plaintiff, however, describes no particular offense for which he fears a bad faith prosecution. What he seeks protection from is an investigation to discover some offense for which the plaintiff might be prosecuted.

Perez, 379 So.2d at 1380. While the court found the theft was both a “case” and a “cause” since it consisted of identifiable criminal conduct that had resulted in an accusation of a crime, it found the district attorney’s brother, unlike, perhaps, the employee accused of theft, had no cause of action for recusal of the district attorney.

Approximately six months following the Perez decision, the Louisiana Legislature amended La.C.Cr.P. art. 680 to include a district attorney’s recusation from grand jury proceedings. La. Act No. 195 of 1980. Thus, article 680(1) now provides for the mandatory recusal of a district attorney when he “[h]as a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice.” The 1980 amendment, following this court’s somewhat narrow interpretation of the article in Perez, evidences a legislative intent to broaden even further the circumstances requiring a district attorney’s recusal.

The remedy of recusation pursuant to La.C.Cr.P. art. 680 “was developed in order to provide a form of protection against bias and partiality to one prosecuted for commission of a criminal offense.” Perez, 379 So.2d at 1378. In a motion to recuse the district attorney pursuant to La.C.Cr.P. art. 680, the defendant bears the burden |7of showing by a preponderance of the evidence that the district attorney has a personal interest in the cause or grand jury proceeding which is in conflict with the fair and impartial administration of justice. State v. Bourque, 622 So.2d 198, 216-17 (La.1993); State v. Edwards, 420 So.2d 663, 673 (La.1982). In the instant case, the sole issue presented is whether defendant has shown by a preponderance of the evidence that the district attorney has a personal interest in the cause which is in conflict with the fair and impartial administration of justice such that he should be recused.

To resolve this issue, we find the history of the recusation article, and this court’s prior jurisprudence interpreting La. C.Cr.P. art. 680(1) and its predecessor instructive. As briefly mentioned above, the Tate case involved a motion to recuse the district attorney in which defendant alleged the district attorney had a personal interest adverse to that of the prosecution because he was counsel in a series of civil suits against the defendant and the outcome of the civil suits depended upon his success in convicting the defendant. In finding the district attorney should have been recused, this court stated:

The district attorney is a quasi judicial officer. He represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Therefore he should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused’s trial fairly and impartially.
And so, in this case, while we are satisfied of the good faith of the district attorney in opposing the demand of defendant for his recusation and of the sincerity of his belief that he has impartially discharged the duties of his office, we think that the policy of the law would be best subserved by his recusation.

Tate, 185 La. at 1019-21, 171 So. at 112-13 (internal citations omitted).

|,sIn State v. Cox, 246 La. 748, 167 So.2d 352 (1964), defendant was charged with defamation of a judge and of the district attorney. Both offenses occurred on the same date and in the same incident. The district attorney properly recused himself in the case in which he was the victim. However, he did not recuse himself and his staff in the case of defamation against the judge until after he or a member of his staff had argued several motions in the case. This court held that the trial court’s failure to timely recuse the district attorney violated defendant’s constitutional and statutory rights and stated:

The district attorney was here confronted with an accused who had allegedly made statements which defamed his character; he was the injured party. A sincere and conscientious public official like District Attorney Pitcher would naturally be outraged by the alleged defamatory statements, as would any person having his good reputation. He would naturally feel that a conviction of the accused would be a public vindication of the wrong done him, and he would have a great personal interest in seeing that the accused was convicted....

Id., 246 La. at 761-62, 167 So.2d at 357.

State v. Snyder, 256 La. 601, 237 So.2d 392 (1970), involved a heated political campaign in which the district attorney supported defendant’s opponent and announced during the campaign his intention to prosecute defendant for defamation for campaign-related remarks. Following the election, the grand jury indicted defendant for 14 separate counts of defamation, including allegations that he defamed the district attorney, a charge which was subsequently nol-prossed. Defendant sought to recuse the district attorney in his prosecution for perjury pursuant to La.C.Cr.P. art. 680(1). The district attorney admitted defendant’s derogatory statements during the campaign against him and others caused him to develop a strong personal animosity toward defendant, but testified that this personal animosity eroded after the election and was gone when the prosecution was instituted. Despite the district |9attorney’s assurances that he no longer felt hostility towards defendant, this court determined the motion to recuse should have been granted, stating:

[Wjhile we do not doubt that [the district attorney] is sincere in his belief that he has banished the personal animosity he harbored toward relator during the campaign, we do not believe that, under the circumstances presented, it would serve the public interest for him to remain in the case as prosecutor. For, after all, while he may believe that his personal animosity has subsided or eroded, still, where such deep-seated hatred has once evinced itself, the district attorney might, even though unconsciously, have impaired his power to conduct relator’s trial fairly and impartially. We therefore hold that the district attorney should be recused in the case.

Id., 256 La. at 609-10, 237 So.2d at 395.

Since at least 1936, this court has interpreted La.C.Cr.P. art. 680(1) and its predecessor to embody a policy requiring a district attorney’s recusal when the situation presented raises questions as to whether the district attorney’s ability to fairly and impartially perform his duties has been impaired, even unconsciously and despite his earnest assertions to the contrary. Thus, La.C.Cr.P. art. 680(1) does not envision a subjective determination as to whether the district attorney would, in fact, be unfair. Rather, it employs an objective decision as to whether a reasonable person would believe the facts at issue regarding the district attorney’s personal interest in the cause would impair his ability to act fairly and impartially in conducting defendant’s prosecution.

Additionally, the legislative history of the article and this court’s jurisprudence interpreting La.C.Cr.P. art. 680(1) and its predecessor evince a wide application of the recusation article. When Justices questioned the Tate court’s broad interpretation of the phrase “personal interest adverse to the prosecution,” the legislature responded by amending that phrase to read “personal interest in the cause which is in conflict with fair and impartial administration of justice” to clarify the article and preserve the \wTate interpretation. When this court stated “cause” includes identifiable criminal conduct that results in an accusation of a crime, but does not extend to an investigation for a non-particularized offense, the legislature extended the article to apply to grand jury proceedings. This amendment further broadened the scope of the article.

The record in this case reveals that defense counsel filed the motion to recuse after a telephone conversation with the district attorney during which the district attorney informed defense counsel of his intention to make essentially the same plea proposal to defendant as he had to the mayor. The mayor’s plea proposal consisted of guilty pleas to certain misdemeanor offenses and required the mayor to resign from office. In a letter to the district attorney following that conversation, defense counsel described the district attorney’s position as “a 180 degree turnabout from your earlier statement clearly indicating an uncertainty as to whether you should proceed at all with the prosecution of [defendant].” The letter further recounted that when defense counsel inquired about the district attorney’s “change of heart” during the telephone conversation, the district attorney informed him that defendant now found himself “in the cross hairs” as a result of two rumors defendant had either started or spread about the district attorney and one of his family members.

The letter further related in a second telephone conversation with the district attorney later that day in which defense counsel suggested that the district attorney’s attitude concerning the prosecution of and appropriate punishment for defendant had “been drastically affected by the rumors” that the district attorney associated with his client. The letter recited that the district attorney then indicated that the rumors were not the “only thing” that had changed his mind about the prosecution of defendant, but that he had also been influenced to proceed with the prosecution of defendant abased on his opinion that defendant had committed perjury in an unrelated case when he contradicted information provided in an affidavit in which he acted as the affiant.

At the hearing on the motion to recuse, the district attorney admitted to an earlier conversation with defense counsel in which he indicated the case against the mayor was of a higher priority than that against defendant. The district attorney did not deny that he initially told defense counsel he was not even certain that he intended to proceed against defendant at all.

Regarding the telephone conversation referenced in defense counsel’s letter, the district attorney acknowledged that he stated he would be amenable to making the same plea offer that he had made to the mayor. The district attorney similarly acknowledged that he told defense counsel he was definitely going to proceed with the felony prosecution of defendant if the may- or’s case resolved unless defendant pleaded guilty to misdemeanor offenses and resigned from office. The district attorney admitted telling defense counsel that his client was in the cross hairs as a result of the rumors. The district attorney attributed his change of heart to the salacious rumors and to the fact that, at that time, it appeared the mayor’s case would resolve. Nonetheless, the district attorney explained that he declined to recuse himself because:

the rumors did not change my approach to the case. The rumors did not and could not change the facts of the case. What I was trying to tell you, I think, was that even though I may have been agitated about it, and yes, I was agitated, that wasn’t gonna change my approach to the facts of the case because I couldn’t change the facts of the case. I think that’s what I was trying to tell you.

However, the district attorney did admit that the rumors factored into his decision to proceed with the prosecution against defendant.

When examined by the State, the district attorney testified that no new evidence |1!⅞⅛ the case had been developed following defendant’s indictment by the grand jury. He agreed that he initially considered the charges against defendant “not a high priority case” and questioned whether he would “get to” defendant, but stated he never indicated that he would never prosecute the matter. The district attorney testified that he never offered to dismiss the case nor did he tender a more favorable plea offer to defendant before learning of his alleged role in the rumors circulating in the community about him and his family member. The district attorney stated that nothing had taken place that would prevent him from conducting himself in a fair and impartial manner concerning defendant’s case. On redirect, the district attorney again did not deny that the rumors he attributed to defendant played into his decision to proceed with the felony prosecution. The district attorney explained that upon reaching a tentative plea agreement with the mayor, “I was not gonna treat [defendant] any differently than I treated [the mayor].”

Defense counsel also testified at the hearing. Regarding the telephone call in which the rumors were first discussed, defense counsel stated:

[The district attorney] very forcefully told me that there was a good chance the Mayor’s case would work out and that if it did — and I said, well, if that happens, what’s gonna happen to — what about our case? That’s the question that I hoped to hear a favorable response to. Not only did I not hear a favorable response, I heard a very angry response from [the district attorney] who initially declined to tell me why there had been such a change of heart. I reminded [the district attorney] during the first conversation of the various conversations we had had wherein he indicated a doubt as to whether he intended to proceed at all. And to his credit, he didn’t deny it. I asked him: Well, what changed? What has happened? I had had contact with my client, as I testified under oath. Nothing that I had been told would account for any — this new— what I perceived to be new animosity on the part of [the district attorney]. Finally, [the district attorney] went into the rumors that he attributed to my client.... They were very serious allegations or rumors. And they are the sort which would cause strong feelings.

|1sAs stated earlier, the trial court denied defendant’s motion to recuse the district attorney following the hearing. The court of appeal peremptorily reversed the decision of the trial court and granted the motion to recuse.

At the hearing, the district attorney clearly and unequivocally stated his belief that defendant was responsible for spreading or starting the offensive rumors was a factor in his decision to proceed with the prosecution against defendant. While he articulated additional factors that influenced his decision, the fact remains that his admitted irritation at defendant as a result of the promulgation of the rumors played a part in his prosecutorial actions. His reaction to the rumors was to use his position to place the defendant in the “cross hairs” of the State’s criminal justice system — a system that seeks equal and impartial justice only. See Tate, 185 La. at 1019, 171 So. at 112. The fact that the district attorney’s personal negative feelings against defendant were a factor in making prosecutorial decisions in defendant’s case is inconsistent with the policy underlying La.C.Cr.P. art. 680(1) as expressed in Snyder, Cox, and Tate.

In the instant case, we find sufficient proof that the district attorney had a personal interest in the cause that is in conflict with the fair and impartial administration of justice. As discussed in Perez, the cause is the alleged crime of malfeasance in office. According to the district attorney’s own testimony, one of the reasons he proceeded with the prosecution of the malfeasance charge was his belief that defendant was involved in spreading or starting offensive rumors. It is conceivable that the district attorney’s continued prosecution of the charge against defendant could be seen by the public as a personal desire for retaliation and retribution in the face of the rumors. This personal interest in the cause calls into question the district attorney’s ability to conduct defendant’s trial fairly and [ ^impartially.

The State maintains that the instant situation is easily distinguished from Snyder because the conduct which led to the district attorney’s animosity toward defendant occurred following the indictment. The State further alleges that the court of appeal’s ruling would lead to “shopping” by defendants because all the defendant would have to do would be to allege that a rumor had been circulating and demand recusation of the district attorney. The State’s argument that an event occurring after the institution of prosecution that might affect the district attorney should not give rise to recusal ignores the reality that district attorneys make myriad decisions regarding a case even after the institution of prosecution. See generally In re: Toups, 00-0634, p. 10 (La.11/28/00), 773 So.2d 709, 715 (“In our system of justice, we entrust vast discretion to the prosecutor in deciding which cases to pursue, what crimes to charge, and how to allocate limited resources.”). For example, once prosecution is instituted, a district attorney must still decide whether to dismiss the charges, whether to offer a plea bargain, what any plea bargain will entail, and how the trial will be conducted. Recusation pursuant to La.C.Cr.P. art. 680(1) can surely be required when the district attorney’s personal interest in the cause which is in conflict with fair and impartial administration of justice arises after the institution of prosecution because prosecutorial decision making does not end with the indictment. Thus, we do not find the recu-sation principles embraced by Snyder to be distinguishable simply because the district attorney’s objectionable personal interest in that case occurred prior to the indictment. Additionally, we do not foresee every defendant wishing to instigate the recusation of the district attorney to successfully do so by alleging, starting or spreading a rumor about the district attorney. It is only when a defendant can demonstrate in his particular case that the negative personal | ^feelings of the district attorney stemming from the allegation or rumor is a factor in the district attorney’s prosecutorial decisions that he could perhaps convince a court to order the district attorney’s recusal. That is, a defendant would be required to prove by a preponderance of the evidence the applicability of La.C.Cr.P. art. 680(1).

A district attorney should not harbor any personal feelings toward an accused that might, consciously or unconsciously, impair his ability to conduct the accused’s trial fairly and impartially. In the instant case, the district attorney candidly and admirably admitted his belief that defendant was responsible for spreading or starting offensive rumors about him and a family member was a factor in his decision to proceed with the prosecution against defendant. Because of this, we find his personal interest in the cause would lead a reasonable person to question whether he could conduct defendant’s trial fairly and impartially. While we have no reason to doubt the district attorney’s belief that he could conduct defendant’s trial fairly and impartially, we find, as we did in Snyder, we cannot say “that, under the circumstances presented, it would serve the public interest for him to remain in the case as prosecutor.” Snyder, 256 La. at 609, 237 So.2d at 395. In the instant case, we find defendant has shown by a preponderance of the evidence that the district attorney has a personal interest in the cause which is in conflict with the fair and impartial administration of justice. The district attorney has not brought forth any evidence to negate the conclusion that his admitted personal interest in the cause is in conflict with the fair and impartial administration of justice. Cf. State v. Marcal, 388 So.2d 656 (La.1980) (on reh’g) (noting the record contained no evidence that the district attorney himself initiated or decided to proceed with the prosecution of defendant). We therefore hold the district attorney should be recused in this case. Consequently, we find the trial court erred in denying defendant’s motion to recuse | lfithe district attorney and the court of appeal correctly reversed that decision.

We recognize this case presents a close issue of whether recusal of the district attorney is warranted. However, we believe that when a colorable application of La.C.Cr.P. art. 680(1) has been shown, we must err on the side of recusal to promote the fair and impartial administration of justice. We hasten to add, however, while it is desirable to err on the side of recusal in close cases, recusal is not required in response to a spurious or vague charge of unfairness and impartiality.

Decree

For all the above reasons, we find defendant has proved by a preponderance of the evidence that the district attorney should be recused pursuant to La.C.Cr.P. art. 680(1). Consequently, we find the trial court erred in denying the motion to re-cuse the district attorney. Accordingly, we affirm the court of appeal’s order granting defendant’s motion to recuse the district attorney and remanding the case to the trial court for further proceedings.

AFFIRMED AND REMANDED.

VICTORY, J., dissents and assigns reasons.

TRAYLOR, J., dissents.

KNOLL, J., dissents for the reasons assigned by VICTORY, J.

WEIMER, J., concurs in the result and assigns reasons.

VICTORY, J.,

dissenting.

|J dissent because I do not believe the evidence shows that the district attorney has “a personal interest in the cause ... which is in conflict with fair and impartial administration of justice,” to the extent that recusal is warranted. Long before the district attorney had ever heard any rumors, he had already begun prosecuting George King with malfeasance in office. In my view, deciding to proceed with the prosecution after he heard the rumors does not provide adequate grounds for re-cusal.

WEIMER, J.,

concurring.

IT respectfully concur in the result. Louisiana Code of Criminal Procedure article 680 states, in pertinent part:

A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice.

Pursuant to this provision, recusal is mandatory when the district attorney has a personal interest in the cause which is in conflict with fair and impartial justice. A personal interest in the cause is insufficient to require recusal unless this personal interest also conflicts with the fair and impartial administration of justice.

A personal interest in the cause could be any factor which results in the district attorney singling out a particular case for any reason unrelated to the duties and responsibilities of a prosecutor. A personal interest in the cause results if the district attorney or a prosecutor is the victim of the crime charged or if there is a direct connection between the crime charged and the district attorney. See, e.g., State v. Tate, 185 La. 1006, 171 So. 108 (1936); State v. Cox, 246 La. 748, 167 So.2d 352 (1964); State v. Snyder, 256 La. 601, 237 So.2d 392 (1970), where there was a direct connection between the charges and the district attorneys. A personal interest in the cause also results when an incident or occurrence adversely affects the district attorney’s ability to exercise detached professional judgment.

12Here, the district attorney acknowledged that the rumors attributed to the defendant caused him to develop agitation toward the defendant. It was not just the rumors, but the district attorney’s candid admission that the rumors impacted and influenced how he exercised his prosecuto-rial discretion that results in a finding that the district attorney had a personal interest in the cause. The district attorney’s reaction to the rumors prevented him from exercising detached professional judgment. The more difficult question is whether this acknowledged and admitted personal interest in the cause also “conflicts with fair and impartial administration of justice.” LSA-C.Cr.P. art. 680(1).

Prior to the rumors, the district attorney volunteered to defense counsel, much to defense counsel’s surprise, that he was not certain he intended to proceed with the prosecution of the defendant. However, in part due to the rumors, the district attorney stated that he had a change of priority and that the defendant was now “in the cross hairs.” The district attorney admitted that the rumors factored into his decision |3to proceed with the prosecution. Specifically, the district attorney acknowledged the rumors he attributed to the defendant “played into” his decision to proceed with the felony prosecution and the “rumors were part and parcel” of his decision to “press full board with the felony prosecution.” This change in his approach to the prosecution of the case, directly attributable to the rumors, established a conflict with the fair and impartial administration of justice.

A district attorney cannot indulge his personal animosity such that professional judgment is affected. Although LSA-C.Cr.P. article 680(1) must be narrowly construed and narrowly applied, the district attorney’s admission that personal animosity toward the defendant caused him to alter his prosecutorial approach triggers the recusal provision.

A district attorney is afforded vast discretion in determining who, when, and how to prosecute. LSA-C.Cr.P. art 61; see also LSA-Const. art. V § 26. See In re Louis Thad Toups, 2000-0634 (La.11/28/2000), 773 So.2d 709, 715. A district attorney is granted broad civil immunity. Knapper v. Connick, 96-0434 (La.10/15/96), 681 So.2d 944, 950. Recusal serves as a limitation on the prosecutorial authority of the district attorney. Nevertheless, concepts of comity mandate that the recusal provision be limited in application so that recusal is not used as a tool to thwart a prosecutor. Each case of recusal must be carefully evaluated and decided on its own facts. This matter presents in a unique factual context which justifies recu-sal.

        . The bill of indictment was later amended to include a violation of La. R.S. 14:134(2) as well as La. R.S. 14:134(1). La. R.S. 14:134(1) and (2) provide:
      Malfeasance in office is committed when any public officer or public employee shall:
      (1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee;
      (2) Intentionally perform any such duty in an unlawful mannerf.]

      . In Perez, this court noted that “[i]t would have been simple to limit recusal to pending criminal prosecutions if the legislators had intended. It would likewise have been simple to extend to criminal investigations the right to recuse the district attorney." 379 So.2d at 1381.

      .The majority suggests that the changes in the recusal statute evidence a legislative expansion of the statute. I disagree in part. The recusal statute initially provided that recusal was required if the district attorney had “a personal interest adverse to the prosecution.” That portion of the current version which provides, in part, "a personal interest in the cause” I find to be virtually indistinguishable from the former recusal provision in application. However, the current version goes on to provide “which is in conflict with the fair and impartial administration of justice.” This language, which was not part of the former recusal provision, acts as a limiting consideration on the applicability of the current recusal statute. Now, it is not enough that the district attorney have a "personal interest in the cause.” It is also necessary that the defendant establish that there is a conflict with a fair and impartial administration of justice. If the district attorney can be fair and impartial despite a personal interest, there is no need to recuse.
      I agree with the majority that the statute was broadened after Plaquemines Parish Commission Council v. Perez, 379 So.2d 1373 (La.1980), but only to expand the proceedings to which the statute was applicable, i.e., to grand jury proceedings.

      . The American Bar Association's Standards for Criminal Justice Prosecution Function and Defense Function (3rd ed., 1993), Standard 3-3.9(d) provides:
      In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions.

      . The district attorney indicated that this meant he was going to try the matter as a priority.

      . At the hearing on the motion to recuse, the district attorney acknowledged the companion case against the mayor of the town of Jena was his primary concern. The charges against the mayor arose out of the same incident as the charges at issue in this matter. The mayor entered a plea agreement which kept a felony charge off of his record and allowed him to plead to three misdemeanors. He was also required to resign from office.


text:
    M.J. FARMS, LTD. v. EXXON MOBIL CORPORATION, et al.
    No. 07-CA-0450.
    Supreme Court of Louisiana.
    April 27, 2007.
   PER CURIAM.

| lAppellants, the State of Louisiana through the Attorney General and Exxon Mobil Corporation, invoke the appellate jurisdiction of this court pursuant to La. Const, art. V, § 5(D), on the ground that the district court declared 2006 La. Act 312 to be unconstitutional.

Pretermitting the merits, we find the issue of constitutionality was not properly raised in this case. In Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/20/94), 646 So.2d 859, this court explained that the unconstitutionality of a statute must be specially pleaded in the district court:

Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute. However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. [emphasis added; citations and footnotes omitted],

[ ¡A review of the record indicates the issue of constitutionality was first raised in plaintiffs “Memorandum in Opposition to Motions to Enforce Stay Provision of Act 312 or Alternatively to Extend Time in Which to File Responsive Pleadings filed by Wagner Oil Company and Parawon Corporation.” As explained in Vallo, a memorandum is not a pleading recognized under the Code of Civil Procedure and is therefore not a proper method to challenge the constitutionality of a statute.

Accordingly, we vacate the judgment of the district court. The case is remanded to the district court to allow plaintiffs to specially plead the unconstitutionality of Act 312 and for the issue to be fully litigated. See La.Code Civ. P. art. 2164; Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971).


text:
    M.J. FARMS, LTD. v. EXXON MOBIL CORPORATION, et al.
    No. 2007-CA-0787.
    Supreme Court of Louisiana.
    April 27, 2007.
   PER CURIAM.

For the reasons assigned this day in 07-CA-0450, we vacate the judgment of the district court. The case is remanded to the district court to allow plaintiff to specially plead the unconstitutionality of 2006 La. Act 312 and for the issue to be fully litigated. See La.Code Civ. P. art. 2164; Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971).


text:
    In re Scott Eason MEECE.
    No. 2007-B-0913.
    Supreme Court of Louisiana.
    May 9, 2007.
   ORDER

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

IT IS ORDERED that Scott Eason Meece, Louisiana Bar Roll number 29627, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


author: FOR THE COURT.

text:
    In re Michael J. REYNOLDS.
    No. 2007-B-0825.
    Supreme Court of Louisiana.
    May 9, 2007.
   ORDER

FOR THE COURT.

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

IT IS ORDERED that Michael J. Reynolds, Louisiana Bar Roll number 1126, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

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

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


text:
    In re Yvonne L. HUGHES.
    No. 2006-B-2901.
    Supreme Court of Louisiana.
    May 11, 2007.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Yvonne L. Hughes, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Hughes, 04-1620 (La.7/2/04), 876 So.2d 772.

Respondent was admitted to the Louisiana bar in 1982. On January 1, 2001, respondent assumed the office of judge for Division “C” of the Orleans Parish Juvenile Court. On February 12, 2003, this court disqualified respondent from exercising judicial functions during the pendency of proceedings before the Judiciary Commission of Louisiana. In re: Hughes, 03-0255 (La.2/12/03), 841 So.2d 745. On April 22, 2004, we removed respondent from office for her persistent and pervasive pattern of willful misconduct as a judge, as well as in her capacity as a lawyer, notary, and judicial candidate. We also reserved to the disciplinary board the right to institute lawyer disciplinary proceedings against respondent. In re: Hughes, 03-3408 (La.4/22/04), 874 So.2d 746 (“Hughes I”).

On March 17, 2005, the ODC filed two counts of formal charges against respondent, alleging that her conduct violated Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent answered the formal charges and denied any misconduct.

LThis matter proceeded to a formal hearing on August 9, 2005, at which the ODC introduced documentary evidence in support of the formal charges. Despite notice, respondent did not appear at the hearing.

In its report, the hearing committee determined that the ODC proved both counts of formal charges by clear and convincing evidence. The hearing committee recommended that respondent be permanently disbarred.

The disciplinary board agreed with the findings of fact of the hearing committee, and concurred in the recommendation of permanent disbarment for respondent’s “habitual pattern of misconduct as a lawyer, candidate for public office and finally ... as a judge.” Neither respondent nor the ODC filed an objection in this court to the disciplinary board’s recommendation.

Based upon our review of the record, we agree with the hearing committee and the disciplinary board that the only appropriate sanction in this case is permanent disbarment. The seriousness and pervasiveness of respondent’s misconduct in all aspects of her legal career readily demonstrates that she is not fit to maintain her license to practice law.

Accordingly, we will adopt the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Yvonne L. Hughes, Louisiana Bar Roll number 7089, be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. laPursuant 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 documentary evidence consisted of this court’s opinion in Hughes I and the voluminous record of that matter.


author: PER CURIAM. VICTORY, J.,

text:
    In re Joseph M. BRUNO.
    No. 2006-B-2791.
    Supreme Court of Louisiana.
    May 11, 2007.
    Charles Bennett Plattsmier, Bernadine Johnson, Baton Rouge, for Applicant.
    Dane S. Ciolino; Martzell & Bickford, John R. Martzell; Joseph M. Bruno, Jr, New Orleans, for Respondent.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties. In 1989, respondent was appointed one of eight members of the Plaintiffs’ Legal Committee (PLC) in the federal class action litigation arising out of an explosion at the Shell Oil Company refinery in Norco. During the contentious litigation, respondent was introduced to Jack Zewe, a longtime Shell employee, by a mutual friend. Mr. Zewe informed respondent that Shell’s attorneys were destroying relevant documents and “teaching witnesses to lie,” and he expressed a willingness to cooperate with the PLC against Shell. However, Mr. Zewe made it clear from the outset that he expected to be paid in return for his cooperation.

In March 1991, respondent arranged several meetings between Mr. Zewe and John Cummings, III and Wendell Gauthier, two PLC members whom respondent viewed as “the leaders of the group.” Shortly thereafter, respondent paid Mr. Zewe $5,000, "with the agreement that Mr. Zewe would keep track of his time and expenses, | Pand at the end of the Shell/Norco litigation, he would apply to the court for payment as an expert witness. Respondent assured Mr. Zewe that the PLC would support the application for payment.

Eventually, Shell learned that one of its employees was providing information to the PLC, and it filed a motion to disqualify the members of the PLC as counsel of record for the plaintiffs. In October 1992, United States District Judge Henry Mentz heard oral argument on the motion to disqualify. During the hearing in open court, Mr. Cummings, arguing on behalf of the PLC, affirmatively stated that the PLC had made no payments to Mr. Zewe. Respondent was present at oral argument, but he said nothing when Mr. Cummings made this misrepresentation to the court. Likewise, respondent did not reveal the true facts when attorney Russ Herman filed a brief with the court asserting that the PLC had not paid Mr. Zewe. Rather, it was not until January 1993 — some 2½ months after the hearing on the motion to disqualify — that respondent disclosed to Judge Mentz that he had paid Mr. Zewe money up front and that he had promised Mr. Zewe that the PLC would seek additional monies for him at the conclusion of the Shell/Norco litigation.

In July 1994, after the Shell/Norco litigation was settled, the en banc district court appointed the United States Attorney’s Office to investigate and report on respondent’s conduct. After the case languished for several years, the United States Attorney’s Office submitted a lengthy investigative report to the federal court in February 1997. Respondent filed a written response to the investigative report. Thereafter, the federal court ordered respondent to show cause why he should not be suspended from the practice of law in federal court.

| sUnited States District Judge Stanwood Duval conducted the show cause hearing on November 19, 1998. On February 8, 1999, Judge Duval issued his report and recommendation in which he concluded that respondent was guilty by clear and convincing evidence of “paying a witness and failing to be candid with the tribunal,” in violation of Rules 3.4(b) and 3.3(a)(1), respectively, of the Rules of Professional Conduct. Judge Duval recommended a six-month suspension for respondent; however, the en banc court ultimately suspended respondent from practicing law in the federal courts of the Eastern District of Louisiana for a period of one year. Respondent appealed his suspension to the United States Fifth Circuit Court of Appeals, which affirmed. Sealed Appellant 1 v. Sealed Appellee 1, 211 F.3d 252 (5th Cir.2000). Respondent was reinstated to practice in federal court in April 2000.

DISCIPLINARY PROCEEDINGS

The formal charges filed by the ODC against respondent allege that he “paid a fact witness for inside information” in violation of Rule 3.4(b) of the Rules of Professional Conduct (a lawyer shall not offer an inducement to a witness that is prohibited by law) and “failed to promptly correct the false statements” of his co-counsel in violation of Rule 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal). Respondent admitted his misconduct in his answer to the formal charges, and the matter proceeded to a hearing in mitigation.

Heating Committee Recommendation

In its report, the hearing committee adopted the stipulated facts and acknowledged respondent’s admission that he violated Rules 3.4(b) and 3.3(a)(1) of |4the Rules of Professional Conduct. According to the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for respondent’s misconduct is suspension. The committee cited ABA Standard 6.32, which provides that suspension is generally appropriate when a lawyer knowingly engages in an improper communication with an individual in the legal system, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding. Respondent knew or should have known that the payment to Mr. Zewe was improper, and furthermore, the payment was a potential cause of interference with the outcome of the proceeding. ABA Standard 6.12 provides that suspension is generally appropriate “when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.” Here, respondent has admitted that he knew false statements were made to the federal court and that he did not take immediate remedial action to correct the false statements. Respondent should have reported the false statements to the court sooner than he did, and his failure to do so caused a potentially adverse effect on the legal proceeding.

The committee noted that this court has in the past suspended lawyers for up to two years for misconduct, similar to respondent’s. In In re: Bailey, 03-0839 (La.6/6/03), 848 So.2d 530, the attorney was suspended for two years for altering a medical record that was introduced into evidence and for lying about a scheduling conflict. In In re: Broome, 01-2260 (La.2/26/02), 815 So.2d 1, the attorney was suspended for one year and one day for making misleading statements to the federal court and for solicitation of clients. Considering this jurisprudence and the ABA | ^Standards, the committee determined that respondent should be suspended from the practice of law for one year.

The only aggravating factor recognized by the committee is respondent’s substantial experience in the practice of law (admitted 1978). In mitigation, the committee recognized the following: absence of a prior disciplinary record, absence of a dishonest or selfish motive, cooperative attitude toward the disciplinary proceeding, character and reputation, delay in the disciplinary proceeding, imposition of other penalties or sanctions, and remorse.

Recognizing that the purposes of lawyer discipline require that respondent receive a “meaningful penalty for his conduct,” but considering the mitigating circumstances present in this case, the committee determined it is appropriate to defer all but three months of the recommended one-year suspension.

Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for one year, with all but three months deferred.

Respondent filed an objection to the hearing committee’s report and recommendation, asserting that the sanction recommended by the committee is excessive.

Disciplinary Board Recommendation

The disciplinary board accepted the hearing committee’s factual findings and agreed that the committee properly applied the Rules of Professional Conduct. The board found respondent’s conduct was intentional, and that he violated a duty owed to the legal system. Respondent admitted that he allowed false statements to go uncorrected before the federal court for 2⅛ months and admitted that he engaged in | ^conduct that was tantamount to a prohibited inducement of a witness. Respondent and Mr. Zewe initially met in December 1990 and discussed Mr. Zewe’s assistance with the Shell/Norco case in exchange for remuneration. On March 28, 1991, respondent paid Mr. Zewe $5,000. The board found the three-month period between Mr. Zewe’s initial request for money and respondent’s payment supports a finding of intentional conduct.

The board determined that the potential harm to the plaintiff class was great. Had the Shell/Norco case not reached a satisfactory settlement, some of the plaintiffs’ evidence may have been compromised due to the manner in which it was obtained. Similarly, there may have been no actual harm to the defendants in the case; however, the question remains as to the potential harm to the defendants’ case and strategy as Mr. Zewe met with Shell’s lawyers on several occasions with regard to the Norco litigation. Finally, respondent caused actual harm to the legal system and to the profession. Paying a witness and failing to correct factual misstatements on the record undermine the credibility of the judicial process and the integrity of the profession as a whole.

Turning to the issue of an appropriate sanction, the board determined that the baseline sanction for respondent’s misconduct is disbarment. ABA Standard 6.11 provides that disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding. Respondent was present at oral argument when his co-counsel, Mr. Cummings, addressed the federal court on behalf of the PLC and stated that the PLC had not made any payments to Mr. Zewe. Nevertheless, respondent said nothing. |7Respondent admitted that he failed to take corrective action for 2½ months after Mr. Cummings made statements that respondent knew to be false. As a result, respondent allowed the initial false statement to lead to another misrepresentation in a subsequent brief by Mr. Herman, who was defending the PLC on the motion to disqualify due to the alleged payment to Mr. Zewe.

ABA Standard 6.21 permits disbarment when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding. Respondent knowingly paid Mr. Zewe for information related to the Norco litigation. The class action settled for $160 million the night before Mr. Zewe was to testify at a motion hearing to prohibit the use of certain evidence. Respondent’s firm received a fee for his work in the case. The record supports the conclusion that respondent knew the payment to Mr. Zewe was wrong. He admitted in testimony that it was inappropriate to make the payment and that what he did “jeopardized potentially the entire litigation.”

The board found the record supports the following mitigating factors: absence of a prior disciplinary record, cooperative attitude toward the disciplinary proceeding, character or reputation, imposition of other penalties or sanctions, and remorse. The board recognized the following aggravating factors: dishonest or selfish motive, multiple offenses (payment to Mr. Zewe and permitting misstatements to be made to the court), and substantial experience in the practice of law.

In prior cases involving similar misconduct, this court has imposed sanctions ranging from a one year and one day suspension to permanent disbarment. The board looked to the Broome and Bailey eases cited by the hearing committee, and also considered the following: In re: Stephens, 94-1924 (La.11/18/94), 645 So.2d 1133 |s(the attorney was suspended for eighteen months for violations of Rules 3.3(a), 3.4(b), 8.4(c), and 8.4(d) by notarizing a false affidavit); In re: Watkins, 95-0459 (La.6/16/95), 656 So.2d 984 (the attorney was suspended for two years after his federal conviction for making false statements to the Social Security Administration to receive benefits for a client and for collecting an excessive fee in a social security case; significant mitigating factors were present); In re: Ellis, 98-0078 (La.5/1/98), 710 So.2d 794 (the attorney was suspended for three years for violations of Rules 3.4(b), 8.4(c), and 8.4(d) by falsifying a court judgment and order; significant mitigating factors were present, warranting a downward deviation from disbarment); and In re: Harris, 03-0212 (La.5/9/03), 847 So.2d 1185 (the attorney was permanently disbarred for manufacturing evidence to support his claim that his deceased sister took his clients’ money; numerous aggravating factors were present, including a prior disciplinary history).

Under all the circumstances, the board concluded that the gravity of respondent’s actions warrants disbarment, and that the mitigating factors present are insufficient to justify any lesser sanction. Based upon this reasoning, the board recommended that respondent be disbarred and be assessed with all costs of these proceedings.

Three board members dissented, reasoning that disbarment is excessive because it is more severe than the one-year suspension imposed by the federal court where respondent’s infraction actually occurred. The dissenting members also noted the absence of any record evidence that respondent’s conduct caused actual injury to the parties in the Shell/Norco litigation, and commented that the recommended sanction fails to take into account several mitigating factors. The dissenting board 19members concluded that the period of suspension suggested by the committee is a “meaningful and appropriate penalty.”

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on the stipulations and other evidence in the record, we find respondent made a prohibited monetary payment to a witness and failed to correct statements made by his co-counsel to the federal district court which he knew to be false. As respondent has admitted, there is clear and convincing evidence which establishes that he has violated Rules 3.3(a)(1) and 3.4(b) of the Rules of Professional Conduct.

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

Respondent’s payment to a witness and lack of candor towards a federal judge violated the integrity of the judicial system and undermined the proper administration of justice, causing a potentially adverse effect on the legal proceeding. The hearing committee correctly found that the baseline sanction for this knowing misconduct is a period of suspension.

In fashioning an appropriate sanction in this case, we recognize in mitigation that respondent has no prior disciplinary record in nearly thirty years of practice, has a good reputation in the legal community, suffered the imposition of other penalties and sanctions for his conduct, and has expressed genuine remorse.

Considering the totality of the circumstances, and taking into account all of the interests to be served by the lawyer disciplinary process, we conclude that the appropriate sanction for respondent’s misconduct is a three-year suspension from the practice of law. We will defer eighteen months of the suspension in view of the significant mitigating factors present.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is [¿¡ordered that Joseph M. Bruno, Louisiana Bar Roll number 3604, be and he hereby is suspended from the practice of law for three years, with eighteen months deferred. 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.

VICTORY, Justice, dissents and assigns brief reasons.

VICTORY, J.,

dissenting.

|,I respectfully dissent and would impose a more severe sanction.

      . Mr. Zewe was apparently concerned about the possibility he could be "caught” by Shell, which would likely result in his being fired.

      . Mr. Cummings told the court that "there is an indication that the PLC has made payments or is making payments to this party [Zewe], All of which I know is untrue, ...” Several minutes later, Mr. Cummings again misrepresented that Mr. Zewe was not being paid by the PLC: "... [N]o member of the PLC ever promised money, [Zewe] was told just the opposite, he could not be paid....”

      . The committee found that respondent’s motive in paying Mr. Zewe was to ensure that justice would be served.

      . A violation of Rule 3.4(b) is a particularly serious infraction which under some circumstances may warrant disbarment. See, e.g., In re: Hingle, 98-0774 (La.9/18/98), 717 So.2d 636 (attorney disbarred based on his criminal conviction of public bribery stemming from his payment of a witness' debts in exchange for the witness’ agreement not to testify against the lawyer’s clients).