text:
    In re Glenda Ann SPEARS.
    No. 2007-B-0499.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|! This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Glenda Ann Spears, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to our order in In re: Spears, 04-2373 (La.9/29/04), 883 So.2d 438.

UNDERLYING FACTS

On September 22, 2004, respondent pleaded guilty in the United States District Court for the Eastern District of Louisiana to one felony count of computer fraud, a violation of 18 U.S.C. § 1030(a)(4), and one felony count of conspiracy to commit computer fraud, a violation of 18 U.S.C. § 371. According to the factual basis for respondent’s guilty plea, in April 2004, the Chief Judge of the Orleans Parish Criminal District Court reported to the FBI that a person who was on drug probation was complaining that his probation officer, Angela Kirkland, was pressuring him to pay $500 in order to be released from probation and aftercare. The probationer | ^subsequently agreed to cooperate with law enforcement and to record his conversations with Ms. Kirkland. On April 26, 2004, the probationer met Ms. KirMand, and in a recorded conversation, she accepted $360, a portion of the requested $500 payment. During the conversation, Ms. Kirkland told the probationer that as a result of the payment he would be released from drug court probation and aftercare. Shortly thereafter, Ms. Kirkland recommended to the sentencing judge that the defendant be released from probation and aftercare, and he was released.

Special Agents of the FBI and officers assigned to the Corruption Task Force of the New Orleans Police Department (NOPD) then began interviewing other persons who had been released from probation. This investigation revealed that respondent, who was then employed by the Orleans Indigent Defender Program (OIDP) had received a $500 payment from a probationer on November 15, 2003. Respondent split this fee with Ms. Kirkland, who in turn recommended to the court that the probationer be released from probation. The judge accepted this recommendation, and the probationer was released from probation.

On July 12, 2004, the FBI and the NOPD approached Ms. Kirkland, who admitted that she had engaged in criminal activity. She also implicated respondent in the scheme, which had been ongoing for nearly a year. With Ms. Kirkland’s cooperation, agents subsequently taped three of her telephone calls with respondent. In these calls, Ms. Kirkland told respondent that she had several other probationers who wanted to be released from probation and aftercare. Respondent said that the fee, which she would subsequently collect and split with Ms. Kirkland, would be $2,500 per probationer.

|3As a result of these calls between respondent and Ms. Kirkland, on July 16, 2004, an undercover law enforcement agent posing as a probationer met with respondent and paid her $2,500. During the meeting, which was audio and video recorded and under the surveillance of FBI agents and NOPD officers, respondent accepted the $2,500 payment and agreed that the probationer would be released from probation because she was working with Ms. Kirkland. Respondent then arranged a meeting with Ms. Kirkland and split half of the $2,500 she had received from the undercover agent. The money respondent turned over to Ms. Kirkland was recovered by the FBI and was the exact money that had been given to the undercover agent.

On July 21, 2004, as a result of additional consensual phone calls made to respondent by Ms. Kirkland, respondent met with another undercover agent posing as a probationer. This meeting was also audio and video recorded and under surveillance, and respondent again asked for and received $2,500 from the agent. After the payment was made, respondent met with Ms. Kirkland under the overpass at Poy-dras and North Broad Streets and paid her $1,250. That money was recovered by the FBI and respondent was immediately arrested.

Following respondent’s guilty plea to the conspiracy and computer fraud charges, she was sentenced on December 14, 2004 to three years of probation. Respondent was placed on home detention for a period of six months, and required to wear an electronic monitoring device. She was also fined $10,000, payable in equal monthly installments of $250 beginning on February 1, 2005, and was ordered to perform 200 hours of community service after completing the period of home detention.

I ¿DISCIPLINARY PROCEEDINGS

In March 2005, the ODC filed one count of formal charges against respondent, alleging that her conduct constituted a violation of Rules 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) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted her conviction, but she denied that her conduct violated the Rules of Professional Conduct. Respondent requested that a hearing be convened and that she be disciplined “not exceeding the term imposed by the United States District Court.”

Hearing Committee Report

This matter proceeded to a formal hearing in August 2005. Considering the evidence and testimony presented at the hearing, the hearing committee found that respondent pleaded guilty to the criminal charges against her, namely conspiracy to commit computer fraud and knowingly and intentionally and with intent to defraud, accessing and causing access to a protected computer by exceeding authorized access and obtaining something of value. The committee further found that the facts of respondent’s case do not exactly match the elements of the crimes charged, but that it was in her best interest to accept the plea that was offered. Based on these factual findings, the committee determined that respondent violated Rules 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

The committee found that respondent intentionally violated duties owed to the public and as a professional, and that her conduct resulted in substantial injury to the legal profession. The baseline sanction for respondent’s misconduct is disbarment.

| ¡fin mitigation, the committee recognized the following factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, inexperience in the practice of law (admitted 1998), good character and reputation, imposition of other penalties or sanctions, and remorse. The committee also noted that respondent “is a single parent raising a young child.” In aggravation, the committee found that respondent’s conduct evidenced a dishonest or selfish motive, in that she stood to gain monetarily from her misconduct. The committee also observed that respondent “worked in the court system and her actions had a direct affect upon the public’s confidence in the Orleans Parish Criminal Judicial Court system.”

In light of the mitigating factors present, the committee determined that it is appropriate to deviate downward from the baseline sanction of disbarment. Accordingly, the committee recommended that respondent be suspended from the practice of law for 24 months, retroactive to the date of her interim suspension.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

Disciplinary Board Recommendation

The disciplinary board found that respondent admitted the facts giving rise to the felony conviction which is the basis for the formal charge. In entering a guilty plea to the felony charges, respondent agreed that had the matter gone to trial the facts would have been proven beyond a reasonable doubt. This standard exceeds the clear and convincing standard set forth in Supreme Court Rule XIX.

The board determined that respondent violated the Rules of Professional Conduct as charged by engaging in a conspiracy to commit computer fraud and computer fraud by soliciting funds from clients to falsely obtain their release from | r,probation. Respondent pleaded guilty to two felony counts, which implicates Rule 8.4(b). Respondent’s conduct of soliciting money from clients to split with her co-conspirator, Angela Kirkland, for her cooperation to alter computerized docket records and make false recommendations to the court for release of clients from probation involves fraud and deceit, in violation of Rule 8.4(c). Finally, respondent’s conspiratorial actions of promoting false representations to the court regarding clients on probation is conduct prejudicial to the administration of justice, in violation of Rule 8.4(d).

Respondent intentionally violated duties owed to the public and to the legal system. In the factual basis which respondent agreed with and signed, she and Ms. Kirkland had been engaged for one year in a scheme to elicit money from clients, alter the computer records, and aver in court that the clients should be released from probation. The public’s confidence in the justice system and the legal system is surely shaken when an officer of the court purposely conspires to obtain money from clients and works to put forth false allegations to the court. The harm, while perhaps intangible, is irrevocable. The baseline sanction for respondent’s misconduct is disbarment.

In mitigation, the board recognized the following factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, imposition of other penalties or sanctions, and remorse. The board found the following aggravating factors are applicable: dishonest or selfish motive, multiple offenses, and substantial experience in the practice of law. The board noted that respondent was not inexperienced in the practice of law at the time of her misconduct, which began approximately five years 17af'ter her admission, but more importantly, “one does not need to be a lawyer to know that accepting money to have records changed and to make false statements to a court is deceitful and dishonest.”

Turning to the issue of an appropriate sanction for respondent’s misconduct, the board reviewed the prior jurisprudence of this court in cases in which the respondent attorney was convicted of a serious crime. The board noted that such cases have generally resulted in disbarment or permanent disbarment. Considering that in this case the aggravating factors outweigh the mitigating factors, and that respondent abused the trust of her position as an officer of the court, the board found that permanent disbarment is appropriate.

Based on this reasoning, the board recommended respondent be permanently disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

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

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990).

In the instant case, respondent stands convicted of computer fraud and conspiracy to commit computer fraud. These crimes are felonies under federal law | sand clearly warrant serious discipline. Therefore, the only remaining issue is the appropriate sanction for respondent’s misconduct. The resolution of that issue depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent does not dispute that the applicable baseline sanction for her misconduct is disbarment under both the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence. Nevertheless, respondent argues that the mitigating factors present justify a substantial downward deviation from disbarment to a three-year suspension. We recognize that several mitigating factors are supported by the record, including the absence of prior disciplinary offenses, respondent’s cooperation with the ODC, and the imposition of other penalties or sanctions in the criminal case. Nevertheless, considering the nature of the conduct forming the basis for the criminal charges, these mitigating factors do not justify the imposition of any sanction less than disbarment.

In contrast to respondent’s argument that a substantial downward deviation from the baseline is warranted in this case, the ODC contends that respondent’s conduct is so egregious that permanent disbarment should be imposed. The disciplinary board agreed, finding that Guideline 2 of the permanent disbarment guidelines (intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury) is applicable.

For approximately one year, respondent was involved with Angela Kirkland, a probation officer in Orleans Parish Criminal District Drug Court, in a bribery scheme in which participants in the drug court probation program were offered a release from their probation obligations in exchange for cash. To carry out this scheme, respondent and Ms. Kirkland recommended that judges release certain | probationers who had paid them off, and they caused false information to be entered into the court’s computer system. We cannot and will not condone conduct by an attorney that is so plainly calculated to frustrate the administration of justice.

Based on this reasoning, 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 disciplinary board, and considering the record, it is ordered that the name of Glenda Ann Spears, Louisiana Bar Roll number 25508, be stricken from the roll of attorneys and that her 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.

CALOGERO, C.J., would simply disbar the respondent.

JOHNSON, J., would disbar, but not permanently.

      . 18 U.S.C. § 1030, entitled "Fraud and related activity in connection with computers,” provides in pertinent part as follows:
      (a) Whoever—

      (4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, ...
      shall be punished as provided in subsection (c) of this section.

      .Respondent’s actions constituted computer fraud because she affected the Orleans Parish Criminal District Court Docket Master Computer, where all entries involving a defendant's case are maintained. This computer is a protected computer under federal law, as it is used by city officials in New Orleans and the information in the computer is used by persons in other states, thereby affecting interstate commerce.

      . The meeting was held across the street from the courthouse on Tulane and Broad.

      . Ms. Kirkland pleaded guilty to conspiracy arising out of her role in the scheme.

      . The board noted that respondent’s scheme was widely known in the local communily through newspaper reports.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Edwin E. BURKS.
    No. 2007-B-0637.
    Supreme Court of Louisiana.
    Aug. 31, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Edwin E. Burks, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to our order in In re: Burks, 05-0917 (La.5/3/05), 900 So.2d 840.

UNDERLYING FACTS

The ODC filed two sets of formal charges against respondent. The first set of formal charges, consisting of two counts and bearing the disciplinary board’s docket number 99-DB-128, was filed on December 23, 1999. The second set of formal charges, consisting of four counts and bearing the disciplinary board’s docket number 05-DB-050, was filed on May 16, 2005. The two sets of formal charges were consolidated by order of the hearing committee chair dated July 20, 2005.

During the hearing in this matter, the ODC formally dismissed Count II of 99-DB-128, as well as Counts I and III of 05-DB-050. Accordingly, no further reference will be made to those matters in this opinion.

99-DB-128

Count I — The Timpton Matter

Respondent represented five clients whom he referred to Wanda Timpton, M.D. for medical treatment. Respondent had in each case guaranteed payment to Dr. | /Timpton upon settlement of the clients’ claims. Nevertheless, upon receiving the settlement funds in 1994, respondent failed to promptly pay the medical expenses to Dr. Timpton. Respondent also failed to maintain the funds due to Dr. Timpton in his client trust account, and instead commingled those funds with his personal funds and converted the funds to his own use. Respondent ultimately paid Dr. Timpton the funds owed on behalf of his five clients, as follows:

In the case of Theodore Jones, respondent withheld $1,240 from his client’s settlement in July 1994 to pay Dr. Timpton. In March 1996, respondent paid the full amount due to Dr. Timpton in cash.

In the case of Erika Frederick, respondent withheld $930 from his client’s settlement in May 1994 to pay Dr. Timpton. In March 1996, respondent paid the full amount due to Dr. Timpton in cash.

In the case of Nelletha Hughes, respondent withheld $740 from his client’s settlement in August 1994 to pay Dr. Timpton. In March 1996, respondent paid the full amount due to Dr. Timpton in cash.

In the case of Lorie Kirk and her minor daughter, Alayna, respondent settled his clients’ case on July 29, 1994. Respondent deposited the settlement funds into his client trust account on August 8, 1994. Respondent paid Ms. Kirk her portion of the settlement (a total of $3,461) on September 28, 1994 and withheld a total of $2,410 to pay Dr. Timpton. In April 1995, respondent negotiated a reduction of the medical bills. On April 28, 1995, respondent sent Dr. Timpton a check in the amount of $1,745, and he returned the remaining $665 to Ms. Kirk. However, during the period of time that respondent held the funds owed to Dr. Timpton and Ms. Kirk, the balance of his trust account fell below the amount due them.

The ODC alleged that respondent’s conduct in this matter violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping | .^property of clients or third persons), 8.4(a) (violation of the Rules of Professional Conduct), 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).

05-DB-050

Count II — The Campaign Finance Reporting Misconduct

In 1994, respondent ran unsuccessfully for a judgeship on the Second City Court of New Orleans. Thereafter, respondent failed to file the requisite campaign finance disclosure reports for the calendar years 1996, 1997, 1998, and 1999. As a result of respondent’s failure to file the reports, the Louisiana Board of Ethics assessed late fees against him totaling $49,620. In 2000, the Board of Ethics conducted a hearing on respondent’s request to reduce the late fees, and thereafter reduced the total late fees to $5,000. Respondent finally paid this amount in full on September 2, 2004. Respondent also failed to cooperate with the ODC in its investigation of this matter.

The ODC alleged that respondent’s conduct in this matter violated the following provisions of the Rules of Professional Conduct: Rules 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.4(a), 8.4(c), 8.4(d), and 8.4(g) (failure to cooperate with the ODC in its investigation).

14Count IV — Respondent’s Federal Conviction

On January 27, 2005, a federal grand jury returned an indictment charging respondent with one count of computer fraud, a felony, in violation of 18 U.S.C. § 1030(a)(4). United States v. Edwin E. Burks, No. 05-026 on the Criminal Docket of the United States District Court for the Eastern District of Louisiana. On March 30, 2005, respondent pleaded guilty to the charge set forth in the indictment. On July 27, 2005, respondent was sentenced to three years of probation. He was also fined $1,000 and was ordered to perform 100 hours of community service.

According to the factual basis for respondent’s guilty plea, respondent was employed as an Assistant City Attorney for the City of New Orleans for approximately twelve years, the last eight of which he was assigned to Section “C” of Traffic Court, where he prosecuted individuals who had been issued traffic citations within the City of New Orleans by various law enforcement agencies. From March 11, 2004 to April 8, 2004, respondent met with an undercover FBI agent whom respondent believed to be a taxi driver who wanted to resolve several outstanding traffic citations. Respondent accepted $1,000 in cash from the man and, in return, agreed to nolle prosequi the traffic citations in question. This exchange was audio and video recorded and under the surveillance of FBI agents. Respondent subsequently did dismiss the traffic citations, and provided to the FBI agent written confirmation of that fact.

|BThe ODC alleged that respondent’s conduct in this matter violated Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

Following the institution of formal charges by the ODC, respondent filed an answer admitting his conviction, but generally denying any other misconduct. This matter then proceeded to a formal hearing on the merits, which was conducted by the hearing committee on April 28, 2006.

Hearing Committee Report

Based on the evidence and testimony presented at the hearing, the hearing committee made the following factual findings:

Count I of 99-DB-128 (the Timpton matter) — In or around 1994, respondent represented Theodore Jones, Erika Frederick, Nelletha Hughes, Lorie Kirk, and Alayna Kirk in various legal matters. Respondent referred all of these clients to Dr. Wanda Timpton for medical treatment, and he guaranteed payment to Dr. Timp-ton upon the settlement of the clients’ legal matters. When the matters were settled, respondent did not pay Dr. Timp-ton promptly. Further, respondent admitted that he commingled and converted client and third-party funds, in that he diverted the funds from his trust account to his operating account and made personal use of that money.

Based on these factual findings, the committee determined that respondent violated Rules 1.15, 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. The committee further found that respondent knowingly violated duties owed to his clients, the legal system, and the profession.

| fiCount II of 05-DB-050 (the campaign finance reporting misconduct)-In connection with his 1994 judicial campaign, respondent was required to provide an accounting of any funds he received and any outstanding debt he carried. After respondent lost the race for judge, he failed to file the periodic accounting required by law. The Ethics Board fined respondent for failing to file the required reports. Respondent did not file the reports because he neither received contributions nor expended money from his campaign account. Rather, the money due to the campaign was money respondent personally lent to the campaign. On June 6, 1999, The Times-Picayune reported on the Ethics Board fine lodged against respondent and others. The ODC initiated an investigation after the newspaper report. Respondent and the Ethics Board reached a compromise in or about June 2000. The total amount of the fine was reduced to $5,000 and that amount was eventually paid by respondent on September 2, 2004.

Based on these factual findings, the committee determined that respondent violated Rules 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. The committee did not find that respondent failed to respond to a lawful demand for information from a disciplinary authority, in violation of Rule 8.1(b), or failed to cooperate with the ODC in its investigation, in violation of Rule 8.4(g).

Count IV of 05-DB-050 (respondent’s federal conviction) — Respondent does not dispute his conviction of one count of computer fraud. However, at the hearing, respondent testified that he, at no time, solicited any money to dismiss the traffic tickets. In fact, respondent stated that he would have dismissed the tickets for no remuneration and that it was only after he agreed to dismiss the tickets that money was mentioned. Respondent also testified that he did not confect a “scheme” to defraud as suggested by the ODC.

|7Based on these factual findings, the committee determined that respondent committed a “serious crime” under Supreme Court Rule XIX, § 19. Respondent’s conduct also violated Rules 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

The committee determined that the baseline sanction for respondent’s misconduct is disbarment. In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, personal or emotional problems, and remorse. The committee also noted respondent’s assistance with the federal investigation into matters at the Orleans Parish Traffic Court. In aggravation, the committee found the following factors are applicable: dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victim (Dr. Timpton), substantial experience in the practice of law, and illegal conduct (relating solely to the criminal conviction). The committee also observed that respondent’s conduct has reflected poorly on the legal profession.

Based on these findings, two members of the committee recommended- that respondent be disbarred. The third member of the committee dissented and would recommend permanent disbarment ■ for respondent’s criminal conviction.

Both respondent and the ODC filed objections to the hearing committee’s findings. The ODC also objected to the leniency of the sanction recommended by the committee.

| ⅝Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board found that the hearing committee’s factual findings are not manifestly erroneous. The board determined that respondent violated the Rules of Professional Conduct as charged in the formal charges, with the exception of Count II of 05-DB-050 (the campaign finance reporting misconduct), in which the board agreed with the committee that respondent did not violate Rules 8.1(b) and 8.4(g). The board found that respondent knowingly and intentionally violated duties owed to the public and to the legal system. Respondent failed to turn over third-party funds in five instances, failed to file accountings relative to his judicial campaign, and on two separate occasions, accepted $500 for his aid in dismissing traffic citations. The public’s confidence in the justice system and the legal system is surely shaken when an officer of the court accepts money to “fix” outstanding traffic citations. The baseline sanction for respondent’s misconduct is disbarment.

In mitigation, the board recognized the following factors: absence of a prior disciplinary record, personal and emotional problems, cooperation with the federal investigation resulting in additional arrests, imposition of other penalties or sanctions, and remorse. The board found the following aggravating factors are applicable: dishonest or selfish motive, multiple offenses, illegal conduct, and substantial experience in the practice of law.

Turning to the issue of an appropriate sanction for respondent’s misconduct, the board considered In re: Rome, 01-2942 (La.9/26/03), 856 So.2d 1167. The | .¡respondent in Rome was an assistant district attorney who accepted approximately $3,000 in cash from individuals on six to eight occasions in payment of outstanding traffic citations and court costs. Rome kept these funds for himself and did not remit the payments to the proper authority. Rome subsequently pleaded guilty to one felony count of malfeasance in office. In permanently disbarring Rome, this court noted that “malfeasance in office while serving as an assistant district attorney is among the most serious misconduct an attorney can commit.”

Considering that in this case the aggravating factors outweigh the mitigating factors, and that respondent abused the authority placed in him in a position of public trust, the board found that permanent disbarment is appropriate under Guidelines 2 (intentional corruption of the judicial process) and 7 (malfeasance in office which results in a felony conviction and involves fraud) of the permanent disbarment guidelines.

Based on this reasoning, the board recommended respondent be permanently disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

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

DISCUSSION

Bar disciplinary matters come ■within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990).

In the instant case, respondent stands convicted of computer fraud. This crime is a felony under federal law and clearly warrants serious discipline. Therefore, the only remaining issue is the appropriate sanction for respondent’s misconduct. The resolution of that issue depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

The applicable baseline sanction for respondent’s misconduct is clearly disbarment under both the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence. However, the ODC contends that respondent’s conduct is so egregious that permanent disbarment should be imposed. The disciplinary board agreed, finding that Guidelines 2 and 7 of the permanent disbarment guidelines are applicable.

On two separate occasions, respondent accepted $500 bribes in exchange for dismissing a case in Traffic Court, where he served as the prosecutor. We cannot and will not condone conduct by an attorney that is so plainly calculated to frustrate the administration of justice.

Based on this reasoning, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

lnDECREE

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 Edwin E. Burks, Louisiana Bar Roll number 3687, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CALOGERO, C.J., would simply disbar the respondent.

JOHNSON, J., would disbar, but not permanently.

      . On reports filed in connection with the 1994 election, respondent disclosed the receipt of a $10,000 loan from himself to his campaign. Therefore, pursuant to La. R.S. 18:1495.4(D)(1), respondent was required to file supplemental reports annually, until a report was filed which showed that he no longer had any outstanding loans. In 2000, respondent submitted an amended report to the Board of Ethics which re-characterized the loan as a transfer of personal funds to his campaign. This amendment essentially eliminated the requirement that respondent file supplemental reports in connection with the 1994 election.

      . 18 U.S.C. § 1030(a)(4) provides that it is a crime to “knowingly and with intent to defraud, access[ ] a protected computer without authorization, or exceed[ ] authorized access, and by means of such conduct further[ ] the intended fraud and obtain[ ] anything of value, ...”

      . Respondent’s actions constituted computer fraud because his dismissal of the traffic citations affected the Louisiana Office of Motor Vehicles Driver Management Database (DMB), where all entries involving an individual’s driving record are maintained. The DMB is a protected computer under federal law, as a dismissal or finding of nolle prosequi of a traffic citation in New Orleans Traffic Court results in an inaccurate or incomplete driving record in the DMB, thereby affecting interstate and foreign commerce.

      . With regard to the Timpton matter, the committee found that respondent’s divorce, his alcoholism, and a fire at his law office were all personal problems to be considered in mitigation. However, the committee specifically noted that with regard to respondent’s illegal conduct at Traffic Court, he had acknowledged that no personal problems contributed to, caused, or influenced his conduct. Rather, respondent simply blamed his "stupidity.”

      . The board noted that respondent’s failure to file appropriate accountings regarding his judicial campaign was widely known in the local community through newspaper reports.

      . The board also reviewed the prior jurisprudence of this court in cases in which the respondent attorney was convicted of a serious crime, but noted that such cases do not involve an attorney employed in a position of public trust, such as an assistant city attorney or an assistant district attorney.

      . Because the imposition of permanent disbarment is the most severe sanction that can be imposed on respondent, having the effect of forever removing him from the bar of this state, we find it is not necessary to discuss the misconduct charged in the remaining counts of the formal charges. In re: Stephens, 07-0180 (La.4/27/07), 955 So.2d 140, citing In re: O’Keefe, 03-3195, pp. 11-12 (La.7/2/04), 877 So.2d 79, 86.


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

text:
    Denton Ray COUTEE v. Rayland K. BEURLOT, M.D.
    No. 2006-C-2943.
    Supreme Court of Louisiana.
    Sept. 5, 2007.
    Gold, Weems, Bruser, Sues & Rundell, Eugene Joseph Sues, Lacey Huffman Edwards, Alexandria, for Applicant.
    Rivers, Beck, Dalrymple & Ledet, Eugene A. Ledet, Jr., Alexandria, for Respondent.
   TRAYLOR, Justice.

_JjWe granted certiorari in this case in order to determine whether the appellate court erred in awarding ten thousand dollars ($10,000) to Plaintiff for emotional damage purportedly sustained as a result of a breach of the physician-patient privilege. For the reasons that follow, we reverse the appellate court’s decision.

FACTS AND PROCEDURAL HISTORY

Delton Ray Coutee (“Coutee”) was employed as a roughneck by Global Marine Drilling Company (“Global”), and on January 7, 2001, while working offshore, Coutee allegedly sustained injuries as a result of a slip and fall. Subsequent to his accident, Coutee filed a maritime action in state court against Global, pursuant to the provisions of the Jones Act, and he sought general damages as well as maintenance and cure benefits. Coutee sought medical treatment from his primary care physician Dr. Robert C. Smith (“Dr. Smith”). Because Dr. Smith wanted Coutee to be evaluated by a doctor specializing in physical medicine and rehabilitation, Dr. Smith referred Coutee to Dr. Rayland K. Beurlot (“Dr. Beurlot”).

On August 7, 2001, Dr. Beurlot met with Coutee in order to conduct a medical evaluation. Although Dr. Beurlot met with Coutee only once, Dr. Beurlot reviewed Coutee’s medical records from Dr. Smith; reviewed Coutee’s functional capacity 12exam (which exam was performed by another healthcare provider); conducted a physical examination of Coutee; and talked with Coutee about Coutee’s medical history. This medical evaluation was meant to show the extent of Coutee’s injuries, the best treatment for said injuries, and the degree of physical labor that could be tolerated by Coutee without the risk of further injury and/or aggravation of the existing condition(s). Based upon his analysis, Dr. Beurlot concluded that Coutee could perform light-to-medium level work. Dr. Beurlot noted inconsistencies between various aspects of the medical evaluation, including Coutee’s claims of pain for which there was no physical explanation. Because of the aforementioned inconsistencies, Dr. Beurlot could not recommend that Coutee return to work of a medium-to-heavy level.

On June 19, 2003, Dr. Beurlot was deposed, and thus, attorneys for Global and Coutee were able to thoroughly examine Dr. Beurlot about his conclusions regarding Coutee’s medical condition and/or work capacity. At his deposition, Dr. Beurlot reiterated his conclusion that Coutee could safely perform work of a light-to-medium level. Further, Dr. Beurlot testified that he thought Coutee was magnifying his symptoms, thereby leading to the inconsistencies within the medical evaluation; however, because of the difficulty in objectively measuring an individual’s level of pain, Beurlot was unable to recommend that Coutee be released to work at full duty (i e. medium-to-heavy level work). Dr. Beurlot stated that he would feel comfortable allowing Coutee to return to a medium-to-heavy level of work, provided that Coutee had no further complaints of pain. Thus, Dr. Beurlot’s assessment that Coutee could not perform medium-to-heavy labor was primarily based upon Coutee’s declarations of pain and/or discomfort.

After Dr. Beurlot’s deposition, but prior to the commencement of the maritime | atrial, Global’s attorney Lawrence R. De-Marcay (“DeMarcay”) requested that Dr. Beurlot meet with him in order to discuss some additional documents in Global’s possession. On January 15, 2004, Dr. Beurlot met with DeMarcay in order to discuss these documents, which documents included (1) a psychological assessment of Coutee; (2) a psychiatric evaluation of Coutee; (3) a transcript of a recorded telephone conversation between DeMarcay and Coutee’s new employer, Allied Discount Tire and Brake, Inc. (“Allied”); and (4) Coutee’s personnel records from Allied. Information contained within the aforementioned documents demonstrated that Coutee had been employed with Allied as a tire tech, a position involving heavy labor. Further, these documents revealed that Coutee performed this heavy labor for approximately seven to eight months without ill effect. Thus, Dr. Beurlot was asked whether this additional information would alter his previous assessment of Coutee’s work capacity. Taking into account this “new” information, Dr. Beurlot opined that Coutee could perform a medium-to-heavy level of work.

On January 26, 2004, a four-day bench trial commenced regarding Coutee’s maritime action. At trial, Dr. Beurlot testified that Coutee’s work capacity was of a medium-to-heavy level, and thus, the trial court ultimately decided to award Coutee only maintenance and cure benefits, with no award for general damages. As a result of the trial court’s decision, Coutee filed a lawsuit against Dr. Beurlot on October 14, 2004. Coutee asserted that Dr. Beurlot changed his testimony regarding Coutee’s work capacity as a direct result of Dr. Beurlot’s ex parte meeting with DeMar-cay, and as such, Coutee alleged that Dr. Beurlot breached the physician-patient privilege. Coutee maintained that he suffered mental anguish as a result of this breach, as |4Coutee claimed damages for the invasion of his privacy as well as the intentional infliction of emotional distress. In response to Coutee’s lawsuit, Dr. Beur-lot maintained that he did not breach the physician-patient privilege during his meeting with DeMarcay, because all of the information discussed during this ex parte meeting had been “flushed out” during Dr. Beurlot’s deposition of June 19, 2003. Furthermore, Dr. Beurlot argued that Coutee waived the physician-patient privilege by placing his physical condition and/or injuries at issue in the lawsuit against Global. Also, Dr. Beurlot pointed out that Coutee had signed a medical authorization form at the time of their one and only medical appointment.

On October 19, 2005, a trial was conducted regarding Coutee’s lawsuit against Dr. Beurlot. On November 30, 2005, the trial court found that Dr. Beurlot had “violated his obligation to keep records and information regarding a patient confidential” and awarded Coutee twenty thousand dollars ($20,000) in damages for emotional distress.

On November 15, 2006, in a 2-to-l decision, the appellate court affirmed the trial court’s decision, while reducing the award of damages to ten thousand dollars ($10,-000.00). In its opinion, the Third Circuit found that Dr. Beurlot had engaged in unauthorized, ex parte communications with Global, which communications violated the physician-patient privilege contained in La. R.S. 13:1374 and La.Code Evid. art. 510. The court of appeal further found that Coutee had failed to prove his claims of invasion of privacy and intentional infliction of emotional distress, but that he had suffered emotional damages due to Dr. Beurlot’s testimony at trial. The dissenting judge stated that the statutes quoted by the majority created only a testimonial and discovery privilege which did not establish a basis for recovery in the case.

| RIn light of the appellate court’s majority decision, Dr. Beurlot sought review from this Court, and we granted his writ application.

STANDARD OF REVIEW

The law applicable to the manifest error standard of review was recently discussed in Detraz v. Lee, 2005-1263 (La.1/17/07), 950 So.2d 557. In Detraz, we stated:

Louisiana courts of appeal apply the manifest error standard of review in civil cases. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.
The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently.

Detraz v. Lee, 2005-1263 (La.1/17/07), 950 So.2d 561.

LAW AND DISCUSSION

In his petition, Coutee claimed that he suffered damages due to Dr. Beurlot’s unauthorized ex parte communication, and particularized his claims as follows: invasion of privacy, interference with right of privacy, breach of the physician-patient privilege, causing a deleterious effect on his ability to develop his injuries and damages, intentional infliction of emotional distress, and negligence. Coutee claimed his damages consisted of mental anguish, discomfiture, humiliation, anxiety, and emotional upset (past, present, and future).

For each of these claims (as well as for any other claim that he could have | [-¡possibly made), Coutee had the burden of proving that the injuries claimed (damages) were caused by the act or omission of the defendant (causation). If Coutee failed to prove either of these elements by a preponderance of the evidence, his claim failed. See, e.g., Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129, 140.

Dr. Beurlot met with Global’s counsel; received new information regarding Coutee’s actual work performance level; gave Global’s counsel a new, different opinion as to Coutee’s expected work performance level; and then testified at trial as to his new opinion of Coutee’s expected work performance level. Arguably, the new opinion given to Global’s counsel was a “privileged communication” protected by the physician-patient privilege; however, neither the meeting nor the receipt of the new information in themselves were in derogation of the privilege. The privilege is designed to keep a physician from divulging information concerning a patient, not to prevent him from receiving information relating to a patient.

For instance, had Global’s attorney met with Dr. Beurlot, given him the new infor-raation, and told him that they would discuss the matter at trial, there would clearly have been no violation of the physician-patient privilege. Had Global’s attorney met with Dr. Beurlot, given him the new information, asked Dr. Beurlot for an opinion, and been told by Dr. Beurlot that he would receive his opinion at trial, there would likewise have been no violation of any privilege.

At trial, Coutee complained only that Dr. Beurlot’s testimony during the original trial of his maritime action was different from that adduced at Dr. Beurlot’s original deposition and that Dr. Beurlot “lied” about him during his trial testimony, but not that Dr. Beurlot gave a different opinion to opposing counsel during the ex parte meeting:

Q When was the next time you had an opportunity to see Dr. Beurlot?
|7A When was the next time I seen Dr. Beurlot? That was the last time I seen him. I didn’t see him no more after that until court.
* * *
Q Were you in the courtroom when Dr. Beurlot testified?
A Yes sir.
Q O.k., in your mind was there any difference in what he told you after his examination and what he said on the stand?
A He changed his words around.
Q Tell me how he changed his words around Delton
A He told me a different thing in a room at his office than he said on the stand that I could go back off shore at a different level but that is how he changed it around to me. The way I understood it.
Q What else did he have to say?
A He, I can’t recall what else he said that day.
Q Did he talk about whether you were being truthful or not?
A Yes sir he done that.
Q What did he tell you ?
A He said, and the way, he said on the stand that I was kind of lying about my symptoms when I got hurt.
Q How did you fell about that?
A Like I was nobody. Like I didn’t mean nothing and the way I was brought up when you say some to somebody and it is privileged it is going to stay there.
* * ⅜
Q Now you stayed for the whole trial didn’t you Delton?
A Yes sir.
Q How did you feel after the trial over what Dr. Beurlot had told you or had said on the stand?
A Upset.
Q Why were you upset Delton?
A Cause of what he said on the stand and what he told me different.

R. at 954-955.

Coutee’s wife testified that Coutee was upset that Dr. Beurlot testified that Cou-tee had “lied” about his injuries, and that Coutee no longer trusted doctors as a result of Dr. Beurlot’s testimony.

Q You were present in the courtroom at the time that Dr. Beurlot testified?
A Yes sir.
Q Delton was there with you?
A On [sic] yes sir.
Q Did Delton at any time express to you his feelings about what Dr. Beurlot had to say while on the stand?
A Yes sir.
Q What did he say?
A He dropped his head and I leaned in and whispered quietly what was wrong. I asked him what was wrong and he said I can’t | ^believe he is lying on me. And I said don’t worry about it, just let it go. He said he is lying and he got very angry and I told him just hang in there.
Q Had Delton, to your knowledge, at any time prior to hearing Dr. Beur-lot testify realize that Dr. Beurlot was accusing him of intentionally magnifying his symptoms?
A No, no.
Q Have you and Delton, has Delton spoke to you at any time subsequent to the trial itself about his feelings about Dr. Beurlot?
A Oh yeah.
Q Tell us about that.
A In response to me asking him to please go see a doctor again, see what we can do for his stomach burning his response is why go, one doctor has lied, there is no reason to see any more. He is angry with this. I have tried to convince him to let the anger go but he just has a hard time handling somebody lying on him. He can’t cope with it. It, it is nerve racking for me cause I don’t know what else to say or help him get past it, he can’t.

R. at 972-973.

None of this “emotional damage” is due to Dr. Beurlot’s giving of an arguably privileged new opinion during the meeting with Global’s counsel — it is, instead, a result of Dr. Beurlot’s giving of a clearly unprivileged new opinion at trial, after having received new information as to Coutee’s actual work performance level, the receipt of which, as discussed earlier, is not covered by the privilege. Further, neither Coutee nor his wife were aware that Dr. Beurlot had changed his opinion due to the receipt of Coutee’s actual work history until Dr. Beurlot testified at trial, at which time, they say, Coutee’s emotional distress began.

It is apparent from his testimony that any emotional distress that Coutee may have suffered was caused by Dr. Beurlot’s testimony at trial, which is clearly not privileged, rather than by the ex parte meeting between Dr. Beurlot and Global. Further, the damages he claims are those that are the result of the inherent ¿■¡characteristics of the adversarial nature of trial-in every trial a party must expect that, at some point, someone will dispute what he or she says or claims. Therefore, most, if not all, litigants who lose at trial suffer some form of mental anguish or emotional distress.

We find that the damages that Coutee complains of were not caused by the ex parte communication between Dr. Beurlot and Global’s attorney, which is the only act or omission arguably a violation of the physician-patient privilege. In addition, we find that Coutee failed to prove any damage which resulted from that alleged act or omission.

Because we have determined that the plaintiff failed to prove two necessary elements, causation and damages, of any claim that he might have made against Dr. Beurlot, we find it unnecessary to discuss whether or not Dr. Beurlot’s giving of a new, different opinion at the ex parte meeting constituted a violation of the doctor-patient privilege, or whether a violation of the discovery statutes constitutes a com-pensable tort.

CONCLUSION

For the reasons set out above, we reverse the decisions of the lower courts.

REVERSED

CALOGERO, C.J., concurs.

KIMBALL and WEIMER, JJ., concur in the result and assign reasons.

JOHNSON, J., dissents.

VICTORY and KNOLL, JJ., concur in the result.

KIMBALL, Justice,

concurring in result.

|, While I concur with the result of the majority’s opinion, I write separately to express my belief that the majority’s reasoning has strayed from resolution of the original legal issue presented: whether plaintiff Coutee (hereinafter “Coutee”) has a cause of action against defendant Dr. Beurlot (hereinafter “Dr. Beurlot”) “for emotional damage purportedly sustained as a result of a breach of the physician-patient privilege.” (Maj. Opinion at 305). For the following reasons, I find that he does not.

The existence of a physician-patient relationship between Coutee and Dr. Beurlot at the time of the events giving rise to this litigation is readily apparent. Coutee was a “patient” of Dr. Buerlot’s, a “healthcare provider.” In the absence of a valid waiver, therefore, Coutee may have had a privilege to prevent Dr. Buerlot “from disclosing [any] confidential communication made for the purpose of advice, | ¡.diagnosis or treatment of his health condition.... ” La. C.E. art. 510(B)(1). What has been overlooked, however, is that even if Dr. Beurlot violated an existing “testimonial privilege,” such a violation “does not constitute a compensable offense under the Civil Code.” Sanders v. Spector, 95-2740, p. 5 (La.App. 4 Cir. 4/24/96); 673 So.2d 1176, 1179. Rather, violations of the physician-patient privilege are governed by the Louisiana Code of Evidence, which provides attorney sanctions as a remedy. Testimonial privileges, in and of themselves, “are generally considered to be procedural in nature and do not ... create causes of action or other substantive rights on the part of the holders of the privileges.” Jackson v. Dendy, 93-0905, p. 6 (La.App. 1 Cir. 6/24/94); 638 So.2d 1182, 1185. Therefore, in my view, Coutee has been unable to support his claims for invasion of privacy or intentional infliction of emotional distress. Given Coutee’s failure to assert breach of contract or any other cause of action, this leaves only Coutee’s tenuous claims of “mental anguish” to support any recovery. As these alleged damages are unaccompanied by physical | ¡¡injury and are insufficient to show an “especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious[,]” Moresi v. State Through Department of Wildlife and Fisheries, 567 So.2d 1081, 1096 (La.1990), even recovery for negligent infliction of emotional distress is inappropriate.

Since Coutee has been unable to prove the elements of any compensable cause of action, I believe that the majority has reached the correct result.

WEIMER, J.,

concurring.

14 concur in the result. I would reverse because the plaintiff inadequately established the damages element of his claim.

As noted by the court of appeal, “[T]he fact that a person’s work status is that of heavy manual labor as opposed to medium duty is hardly the type of embarrassing, private facts necessary to recover for an invasion of privacy.” Coutee v. Beurlot, 2006-569, p. 12 (La.App. 3 Cir. 11/15/06), 943 So.2d 637, 647. I agree, and also believe this is not the type of information which would result in legally compensable damages under any theory of recovery.

Coutee’s claim of emotional anguish was couched in terms of his distress over being “called a liar” during the maritime trial, in addition to general anguish over his distrust of physicians. Coutee’s real anguish lies in the fact that the information discussed during the ex parte meeting revealed the nature of his work capability (i.e., Coutee could perform heavy labor). Significant, however, is the deposition testimony of Dr. Berlot taken prior to trial and prior to the ex parte meeting. In deposition, Dr. Beurlot testified he found numerous intentional inconsistencies while examining Coutee, leading to a belief Cou-tee had magnified his symptoms.

Thus, Coutee failed to satisfactorily prove any legally compensable damages.

      . On appeal, the appellate court reversed the trial court’s judgment and awarded Coutee general damages; however, on February 22, 2006, this Court reversed the appellate court and reinstated the trial court’s judgment. See Coutee v. Global Marine Drilling Company, 05-0756 (La.2/22/06); 924 So.2d 112.

      . R. at 912-13.

      . Coutee v. Beurlot, 06-2943 (La.3/16/07); 952 So.2d 683.

      . La. C.E. art. 510(A)(1) provides that a " '[p]atient' is a person who consults or is examined or interviewed by another for the purpose of receiving advice, diagnosis, or treatment in regard to that person’s health.”

      . La. C.E. art. 510(A)(2) defines a "health care provider” to include a "physician.” A physician is defined as "a person licensed to practice medicine in any state or nation.” La. C.E. art. 510(A)(3).

      . La. C.E. art. 510(B)(1) states in full:
      General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.

      .La. R.S. 13:3734(B): "In noncriminal proceedings, testimonial privileges, exceptions, and waiver with respect to communications between a health care provider and his patient are governed by the Louisiana Code of Evidence.” Article 510(G) of. the Code of Evidence provides that "[a]ny attorney who violates a provision of this Article shall be subject to sanctions by the court.” This article therefore "makes it clear that any sanctions for such a violation should be against the attorneys in the case, and not against the litigants....” Hortman v. Louisiana Steel, 96-1433, p. 6 (La.App. 1 Cir. 6/20/97); 696 So.2d 625, 628; writ denied 97-1919 (La.11/7/97); 703 So.2d 1268.

      . The Court of Appeal properly found that Coutee failed to put forth evidence for essential elements of both his intentional infliction of emotional distress and invasion of privacy claims. See Coutee v. Beurlot, 06-569, p. 11-12 (La.App. 3 Cir. 11/15/06); 943 So.2d 637, 647. The court erred, however, in holding that Coutee had claimed actionable damages because he felt he had been "called a liar,” was "upset,” had developed “a general distrust of physicians," and "felt psychological effects” as a result of Dr. Beurlot’s communications with a third party. See id. at p. 13, 943 So.2d at 647.


text:
    In re Sheila WHARTON.
    No. 2007-B-0556.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Sheila Wharton, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1972. In 2003, this court considered a proceeding involving two sets of formal charges against respondent for misconduct that occurred between 1996 and 2000. These charges alleged that respondent failed to communicate with clients, neglected legal matters, refused to refund unearned fees, and failed to cooperate with the ODC in its investigation. After considering the record, we imposed a three-year suspension. In re: Wharton, 03-1816 (La.10/17/03), 872 So.2d 459 (“Wharton I ”). Respondent has not sought reinstatement from this suspension, and accordingly, she remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

| ¡.FORMAL CHARGES

Count I — The White Matter

In August 2002, Fredia Culpepper White paid respondent $500 to handle her mother’s succession. Ms. White obtained the documentation respondent requested and met again with respondent in July 2003. Thereafter, Ms. White’s repeated attempts to contact respondent were unsuccessful. In November 2003, Ms. White filed a complaint against respondent with the ODC, to which respondent failed to reply. In June 2004, Ms. White advised the ODC that due to respondent’s neglect, the house which was to be part of her mother’s succession may have been repossessed by the bank. Ms. White also reported that she and a relative were forced to pay another attorney $3,000 to complete the succession.

As a result of respondent’s suspension from the practice of law in Wharton I, a curator was appointed in 2004 to inventory her client files. Neither the ODC nor the curator were able to locate respondent despite numerous documented attempts to do so.

The ODC alleges that respondent’s conduct in the White matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II — The Gillins Matter

In April 2003, Debbie Gillins retained respondent to handle her divorce. At the time the representation commenced, Ms. Gillins paid respondent $395, with the understanding that respondent would file a petition for divorce. Two weeks later, Ms. | aGillins paid respondent an additional $425, for a total of $820. Thereafter, Ms. Gillins’ numerous attempts to contact respondent were unsuccessful. In January 2004, Ms. Gillins filed a complaint against respondent with the ODC, reporting that she had been forced to delay her plans to remarry due to respondent’s abandonment of her case. Respondent faded to reply to the complaint.

The ODC alleges that respondent’s conduct in the Gillins matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), and 8.1(c).

Count III — The Frame Matter

In June 2003, Timothy Frame retained respondent to handle a child custody matter. Mr. Frame paid respondent $1,500 for the representation. In August 2003, respondent sent Mr. Frame a copy of the petition for approval. Respondent represented to Mr. Frame that she had forwarded the petition to the Sheriffs Office for service on Mr. Frame’s former wife. Thereafter, Mr. Frame’s numerous attempts to contact respondent were unsuccessful, and he learned through direct contact with the Sheriffs Office that no service or other activity had occurred in his matter since September 2002. In January 2004, Mr. Frame sent a certified letter to respondent terminating the representation and demanding a refund. Respondent did not claim the letter and refused to return calls or refund fees, leading Mr. Frame to file a complaint with the ODC in February 2004. Respondent failed to reply to the complaint.

The ODC alleges that respondent’s conduct in the Frame matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), 1.16(d) (obligations upon termination of the representation), and 8.1(c).

I ¿DISCIPLINARY PROCEEDINGS

In April 2005, the ODC filed three counts of formal charges against respondent, as set forth above. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

The hearing committee determined that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3). The committee also determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

Based on these findings, the committee determined that respondent knowingly and intentionally violated duties owed to her clients. Respondent failed to perform services, thereby jeopardizing her clients’ legal matters and delaying resolution of their cases. Respondent’s failure to refund any unearned portion of the fees received from her clients continues to deprive the clients of funds rightfully owed them. The baseline sanction for respondent’s misconduct is a period of suspension.

The committee found that the following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the 15rules or orders of the disciplinary agency. The committee found no mitigating factors.

Considering the court’s prior jurisprudence, the committee determined that a lengthy suspension would ordinarily be appropriate for respondent’s misconduct. However, in light of the numerous aggravating factors present, including respondent’s previous suspension in Wharton I, as well as her continuing failure to cooperate in the disciplinary investigations, the committee recommended that respondent be disbarred.

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

Disciplinary Board Recommendation

The disciplinary board concurred in the findings of the hearing committee that respondent violated the Rules of Professional Conduct as set forth in the formal charges, and that the charges were deemed admitted and proven by clear and convincing evidence.

The board determined that respondent violated duties owed to her clients and to the profession. Given the pattern of misconduct, respondent’s actions can only be described as knowing and intentional. Ms. White, Ms. Gillins, and Mr. Frame have all been injured by respondent’s failure to return their legal fees and failure to complete their legal matters. The disciplinary system has been harmed in that the ODC has been forced to expend additional resources in its numerous attempts to contact respondent to obtain information for its investigation.

The board found that the following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction 16of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1972), and indifference to making restitution. The board agreed "with the hearing committee that no mitigating factors are present.

Likewise, the board agreed that the applicable baseline sanction in this matter is suspension, but that an upward deviation to disbarment is warranted under the circumstances. Numerous aggravating factors are present in this case, and respondent was previously suspended for three years for similar misconduct. She has failed to refund unearned fees to three clients totaling some $2,820, and she has repeatedly failed to cooperate with the ODC in its attempt to investigate the charges in this matter.

Based on this reasoning, the board recommended that respondent be disbarred. The board also recommended that respondent be ordered to provide an accounting and/or make restitution to her clients, and that she be assessed with all costs and expenses of these proceedings.

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

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 |7the 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 of this deemed admitted proceeding reveals that respondent neglected legal matters, failed to communicate with her clients, failed to account for or refund unearned fees paid by her clients, failed to return a client’s file, and failed to cooperate with the ODC in its investigation. This conduct clearly falls below the standards expected of a lawyer licensed to practice law in this state and, most disappointingly, is markedly similar to that which we saw in Wharton I.

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).

Respondent violated duties owed to her clients and as a professional. Undoubtedly, she acted knowingly, if not intentionally, and caused actual harm to her clients. The baseline sanction for this misconduct is a period of suspension.

Several significant aggravating factors are present in the instant case, including respondent’s prior three-year suspension in Wharton I for nearly identical misconduct. Respondent’s pattern of misconduct caused actual harm to her clients, and her total disregard for her professional obligations indicates that she poses a I «substantial danger to the public. Respondent’s continued indifference to rectifying the consequences of her misconduct is evident not only in her lack of response in the disciplinary proceedings, but in the timing of the misconduct, which occurred while the Wharton I proceedings were ongoing. There are no mitigating factors.

Considering the numerous aggravating factors present, respondent’s prior suspension, and the unearned fees that still have not been refunded to three clients, we cannot say the board’s recommendation of disbarment is inappropriate. Accordingly, we will disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Sheila Ann Wharton, Louisiana Bar Roll number 13391, be disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall provide ac-countings to her clients subject of the formal charges and make full restitution of any unearned legal fees. 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.


text:
    STATE of Louisiana v. David LEMELLE.
    No. 2006-K-2975.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   PER CURIAM.

Granted. A fair reading of the plea form and Boykin colloquy reveals that an agreement was reached in which the defendant’s sentencing exposure would be capped at 10 years provided that a pre-sentence investigation did not determine that the defendant had more than one prior conviction at that time. Although the presentence report revealed other criminal history, it did not show any other prior conviction(s) than the one acknowledged by defendant during the Boykin hearing. Under these circumstances, as Chief Judge Thibodeaux observed, State v. Lemelle, 06-0371 (La.App. 3rd Cir.9/27/06), 937 So.2d 444, 2006 WL 2806580(unpub’d)(Thibodeaux, C.J., dissenting), defendant is entitled to the enforcement of his plea agreement. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Hayes, 423 So.2d 1111, 1112-15 (La.1982). The ruling of the court below is therefore reversed, the sentences imposed vacated, and the matter remanded for resentencing in accord with the plea agreement.

TRAYLOR and KNOLL, JJ., would deny the writ.


text:
    In re Satrica WILLIAMS-BENSAADAT.
    No. 2007-B-1618.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to competently represent her clients, neglected legal matters, failed to communicate with her clients, engaged in conduct constituting a conflict of interest, and allowed her clients’ cases to prescribe. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which respondent admits that her conduct violated Rules 1.1(a), 1.2, 1.3, 1.4, 1.9, and 1.16(d) of the Rules of Professional Conduct. Having reviewed the petition for consent discipline,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Satrica Williams-Bensaadat, Louisiana Bar Roll number 26142, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall be placed on probation for a period of two years, subject to the conditions set forth in the joint petition for consent discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

TRAYLOR, J., would deny and reject consent discipline.


text:
    In re Michael J. WILLIAMSON.
    No. 2007-0B-0241.
    Supreme Court of Louisiana.
    Sept. 14, 2007.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| petitioner, Michael J. Williamson, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify him for admission to the Bar based upon character and fitness concerns. On petitioner’s application to this court, we appointed the Office of Disciplinary Counsel to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law, subject to a five-year period of probation. Neither petitioner nor the Committee objected to that recommendation.

Considering the commissioner’s recommendation and the entire record of this proceeding, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Executive Director of the Lawyers Assistance Program. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be ^terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    STATE of Louisiana v. Anna JONES.
    No. 2007-KK-1865.
    Supreme Court of Louisiana.
    Sept. 18, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 459-171 B; to the Court of Appeal, Fourth Circuit, No. 2007-K-1197.

Granted. The trial court’s September 13, 2007 ruling on the motion to suppress is reversed, and the matter is remanded to the trial court for continuation of the trial. See La.Code Crim. Proc. Ann. art. 703(F) (2003); see also State v. Smith, 392 So.2d 454, 458 n. 6 (La.1980) (holding the hearsay rule is not required to be applied at a suppression hearing).

JOHNSON, J., would deny the writ.


text:
    The CITY OF KENNER v. Carla Ann SANSONE.
    No. 2007-CC-1031.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Kenner, City of et al.; Chiro, Keith; Clarendon America Insurance Company; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 624-050; to the Court of Appeal, Fifth Circuit, No. 07-C-199.

Granted and docketed.


text:
    INTERNATIONAL PAPER, INC. v. Cynthia BRIDGES, Secretary Department of Revenue, State of Louisiana.
    No. 2007-C-1151.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re International Paper Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. I, No. 2003-910; to the Court of Appeal, Second Circuit, No. 42,-023-CA.

Granted.


text:
    STATE ex rel. Stanley BRITTON v. STATE of Louisiana.
    No. 2006-KH-2633.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Britton, Stanley; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 04-4569; to the Court of Appeal, Fifth Circuit, No. 06-KH-716.

Writ granted; court of appeal denial vacated; matter remanded to court of appeal for consideration of merits of applicant’s writ application. The ruling of the court of appeal denying applicant’s writ application indicates the matter was denied as being moot, which is clear error. Applicant is entitled to have the merits of the district court’s denial of post-conviction relief reviewed by the court of appeal.


text:
    STATE of Louisiana v. Randy RANDALL.
    No. 2007-KH-1761.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Randall, Randy; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. I, No. 005-258853.

Granted for the sole purpose of transferring the application to the district court for its consideration.


text:
    STATE ex rel. David Wayne POYDRAS v. STATE of Louisiana.
    No. 2006-KH-2556.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Poydras, David Wayne;Plaintiff(s); Applying for Reconsideration of this Court’s Order dated August 15, 2007; Parish of Lafayette, 15th Judicial District Court, Div. J, No. 52685; to the Court of Appeal, Third Circuit, No. 06-00993.

Reconsideration Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Norvel REYNOLDS, Jr. v. STATE of Louisiana.
    No. 2006-KH-2661.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Reynolds, Norvel Jr.;Plaintiff(s); Applying for Reconsideration of this Court’s Order dated August 15, 2007; Parish of East Baton Rouge, 19th Judicial District Court, Div. C, No. 2-97-433; to the Court of Appeal, First Circuit, No. 2006-KW-1552.

Reconsideration Denied.


text:
    STATE of Louisiana v. Domingo VILLARREAL.
    No. 2007-KP-0065.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Villarreal, Domingo; — Defendants); Applying for Reconsideration of this Courts action dated June 22, 2007; Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 111307; to the Court of Appeal, First Circuit, No. 2006 KW 2220.

Reconsideration Denied.


text:
    STATE of Louisiana v. Ruben SOSA.
    No. 2007-K-0077.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Sosa, Ruben; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-5514; to the Court of Appeal, Fifth Circuit, No. 04-KA-507.

Not considered. Not timely filed.


text:
    BASS, LTD. v. Tim GERALD, et al.
    No. 2007-C-1225.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Triangle Venture Associates Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 04-C-2115; to the Court of Appeal, Third Circuit, No. 06-1125.

Not considered. Not timely filed.


text:
    Loretta LIBERTO and Charles Liberto, Jr. v. HEALTHSOUTH CORPORATION d/b/a Healthsouth Rehabilitation Hospital of Alexandria.
    No. 2007-CC-1230.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Louisiana Patients’ Compensation Fund; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 207,396; to the Court of Appeal, Third Circuit, No. CW 07 00578.

Not considered. Not timely filed.


text:
    Celia Jane CURETON v. James Howard CURETON.
    No. 2007-CC-1578.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Cureton, James Howard; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. I, No. 2001-3675; to the Court of Appeal, Third Circuit, No. 06-1030.

Writ denied; stay recalled. Because of the procedural posture of this case, it is not appropriate for us to exercise our supervisory jurisdiction.


text:
    STATE ex rel. Roland J. PELTIER, Jr. v. STATE of Louisiana.
    No. 2006-KH-2694.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Peltier, Roland J. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. CR-95374; to the Court of Appeal, Third Circuit, No. 06-0284.

Denied.


text:
    STATE ex rel. Lenard HICKS v. STATE of Louisiana.
    No. 2006-KH-2850.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Hicks, Lenard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 99-7491; to the Court of Appeal, Fifth Circuit, No. 06-KH-770.

Denied.


text:
    STATE ex rel. Phillip CAIN v. STATE of Louisiana.
    No. 2006-KH-2851.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Cain, Phillip; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 08-95-1995; to the Court of Appeal, First Circuit, No. 2006 KW 1765.

Denied. Relator must first address his request for a cost estimate to the record’s custodian. R.S. 44:31; State ex rel. Shelton v. State, 00-1901 (La.9/14/01), 796 So.2d 672; State ex rel. McKnight v. State, 98-2258 (La.App. 1st Cir.12/3/98), 742 So.2d 894.


text:
    STATE ex rel. Marvin CHASTAIN v. STATE of Louisiana.
    No. 2006-KH-2852.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Chastain, Marvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 388,277; to the Court of Appeal, First Circuit, No. 2006 KW 1697.

Denied.


text:
    STATE ex rel. Danny Ray GRAY v. STATE of Louisiana.
    No. 2006-KH-2853.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Gray, Danny Ray; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 284,029; to the Court of Appeal, First Circuit, No. 2006 KW 1894.

Denied.


text:
    STATE ex rel. Arther Lee TAYLOR, Jr. v. STATE of Louisiana.
    No. 2006-KH-2854.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Taylor, Arther, Lee; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 99,680.

Denied. Repetitive. Cf. La.C.Cr.P. art. 980.4(D).


text:
    STATE ex rel. Phillip M. WILLIE, Sr. v. STATE of Louisiana.
    No. 2006-KH-2855.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Willie, Phillip M. Sr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 368622; to the Court of Appeal, First Circuit, No. 2006 KW 1721.

Denied.


text:
    STATE ex rel. George WADE v. STATE of Louisiana.
    No. 2006-KH-2856.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Wade, George; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 80-313; to the Court of Appeal, Fifth Circuit, No. 06-KH-769.

Denied.


text:
    STATE ex rel. Patrick Brian CLARK v. STATE of Louisiana.
    No. 2006-KH-2857.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Clark, Patrick Brian; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 275,211; to the Court of Appeal, Third Circuit, No. 06-508.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

i


text:
    STATE ex rel. Roosevelt COMBEST v. STATE of Louisiana.
    No. 2006-KH-2858.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Combest, Roosevelt; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 64,777 “A”; to the Court of Appeal, Third Circuit, No. KH 06-00406.

Denied.


text:
    STATE ex rel. Albert GREEN, Jr. v. STATE of Louisiana.
    No. 2006-KH-2859.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Green, Albert Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 273776; to the Court of Appeal, Third Circuit, No. KH 06-01391.

Denied.


text:
    STATE ex rel. Bobby Ray HENDERSON v. STATE of Louisiana.
    No. 2006-KH-2868.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Henderson, Bobby Ray; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 16,187; to the Court of Appeal, Second Circuit, No. 41770-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kintad PHILLIPS v. STATE of Louisiana.
    No. 2006-KH-2869.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Phillips, Kintad; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 378-343; to the Court of Appeal, Fourth Circuit, No. 2006-K-1296.

Denied.


text:
    STATE ex rel. Ardic FIELDS v. STATE of Louisiana.
    No. 2006-KH-2871.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Fields, Ardic; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 212,841; to the Court of Appeal, Second Circuit, No. 41951-KH.

Denied.


text:
    STATE ex rel. Edward HENDERSON v. STATE of Louisiana.
    No. 2006-KH-2872.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Henderson, Edward; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 03-162-673; to the Court of Appeal, First Circuit, No. 2006-1591.

Denied.


text:
    STATE ex rel. Clent SMITH v. STATE of Louisiana.
    No. 2006-KH-2873.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Smith, Clent; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 00-1084; to the Court of Appeal, Fifth Circuit, No. 06-KH-648.

Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Ronnie SCOTT v. STATE of Louisiana.
    No. 2006-KH-2874.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Scott, Ronnie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, Nos. 12-97-181, 3-98-930; to the Court of Appeal, First Circuit, No. 2006 KW 1699.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Brian AUDETTE v. STATE of Louisiana.
    No. 2006-KH-2875.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Audette, Brian; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 542-967; to the Court of Appeal, First Circuit, No. 2006 CW 1976.

Denied.


text:
    STATE ex rel. Darrell D. ARTIS v. STATE of Louisiana.
    No. 2006-KH-2876.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Artis, Darrell D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. C, No. CR-2225-89; to the Court of Appeal, Third Circuit, No. KH 06-00991.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Lugene MILTON v. STATE of Louisiana.
    No. 2006-KA-2877.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Milton, Lugene; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 125,746; to the Court of Appeal, Second Circuit, No. 41944-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. David Lee WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-2878.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Williams, David Lee; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 82-CRC-37096.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Bernard DENHAM v. STATE of Louisiana.
    No. 2006-KH-2887.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Denham, Bernard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 321-085; to the Court of Appeal, First Circuit, No. 2006 KW 2040.

Denied.

JOHNSON, J., would grant.


text:
    STATE ex rel. James E. DIVERS v. STATE of Louisiana.
    No. 2006-KH-2888.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Divers, James E.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 46,968; to the Court of Appeal, Second Circuit, No. 41914-KH.

Denied.


text:
    STATE ex rel. Peter CELESTINE v. STATE of Louisiana.
    No. 2006-KH-2889.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Celestine, Peter; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. B, Nos. 50-43314, 95-CR-0839; to the Court of Appeal, Third Circuit, Note). KH 06-00861, KH 06-00553.

Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Alexander SURRY v. STATE of Louisiana.
    No. 2006-KH-2891.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Surry, Alexander Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. J, No. 212,499; to the Court of Appeal, Second Circuit, No. 41909-KH.

Denied.


text:
    STATE ex rel. Stephen LOEBER v. STATE of Louisiana.
    No. 2006-KH-2893.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Loeber, Stephen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 030613; to the Court of Appeal, First Circuit, No. 2006 KW 1645.

Denied.


text:
    STATE ex rel. Paul GRAVES v. STATE of Louisiana.
    No. 2006-KH-2895.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Graves, Paul; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. 0, No. 96,129; to the Court of Appeal, Second Circuit, No. 41917-KH.

Denied.


text:
    STATE of Louisiana v. Dustin K. RUNYON.
    No. 2007-K-0049.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Runyon, Dustin K; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Catahoula, 7th Judicial District Court Div. O, Nos. 03-0736, 03-0817; to the Court of Appeal, Third Circuit, No(s). 06-823, 05-36, 05-104.

Denied.


text:
    STATE of Louisiana v. Christopher Tell GLENN.
    No. 2007-K-0050.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Glenn, Christopher Tell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 7781-04; to the Court of Appeal, Third Circuit, No. 06-799.

Denied.


text:
    STATE of Louisiana v. Fred Lee FAIRLEY, III.
    No. 2007-OK-0052.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Fairley, Fred Lee III; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 277,785; to the Court of Appeal, Third Circuit, No. KA06-1349.

Denied.


text:
    STATE of Louisiana v. Jerry BELLOW.
    No. 2007-K-0061.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Bellow, Jerry; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. C, No. 04-0463; to the Court of Appeal, Fifth Circuit, No. 06-KA-431.

Denied.


text:
    STATE of Louisiana v. Joseph VANCE.
    No. 2007-K-0062.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Vance, Joseph; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 05-2676; to the Court of Appeal, Fifth Circuit, No. 06-KA-465.

Denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Tommy CLOUD.
    No. 2007-K-0086.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Cloud, Tommy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Allen, 33th Judicial District Court Div. 0, No. 2003-1773; to the Court of Appeal, Third Circuit, No. 06-877.

Denied.


text:
    STATE of Louisiana v. Daniel MORRIS.
    No. 2007-KP-0087.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 223,560; to the Court of Appeal, Second Circuit, No. 41,-651-KA.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Elbert J. RATCLIFF.
    No. 2007-KP-0101.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Ratcliff, Elbert J.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 96-2598; to the Court of Appeal, Fifth Circuit, No. 06-KH-918.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Henry A. DYKES, Sr.
    No. 2007-KP-0108.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Dykes, Henry A. Sr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. Ol-F-1228-2; to the Court of Appeal, Second Circuit, No. 42052-KW.

Denied.


text:
    Elvis OCON v. REGENCY MOTORS OF METAIRIE, LLC.
    No. 2007-C-1063.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Regency Motors of Metairie LLC; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 7, No. 04-03224; to the Court of Appeal, Fifth Circuit, No. 06-CA-834.

Denied.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    Melba Margaret Schwegmann BROWN v. John F. SCHWEGMANN and Melinda B. Schwegmann.
    No. 2007-C-1094.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Schwegmann, John F. et al.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2000-4795; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0830.

Denied.


text:
    Teresa Mae Badeaux FERNANDEZ v. Donald F. HEBERT, et al.
    No. 2007-C-1123.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Fernandez, Charles Raymond;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, Nos. 98312, 101047; to the Court of Appeal, First Circuit, No. 2006 CA 1558.

Denied.

WEIMER, J., recused.


text:
    Susan BOWER v. Allen L. SMITH, III.
    No. 2007-CC-1142.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Smith, Allen L. III; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 03-11210; to the Court of Appeal, Fourth Circuit, No. 2007-C-0414.

Denied. May be re-urged on appeal.


text:
    Mark MOREHOUSE v. SOUTHERN UNIVERSITY, BATON ROUGE CAMPUS.
    No. 2007-C-1147.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Southern University Baton Rouge Campus; — Defendant; Applying for Writ of Certiorari and/or Review State Civil Service Commission, No. S-15279; to the Court of Appeal, First Circuit, No. 2006 CA 1184.

Denied.

KIMBALL, J., would grant.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    Milton MORGAN, John Ray Lathan, Van Terry Lathan, Mary Elizabeth Lathan and Mark Lathan v. COMMUNITY CARE, L.L.C. d/b/a Baton Rouge Heritage House.
    No. 2007-CC-1153.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Community Care L.L.C. d/b/a; Baton Rouge Heritage House; — Defendant/s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 540-508; to the Court of Appeal, First Circuit, No. 2006 CW 2413.

Denied.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    TOWN OF HAYNESVILLE, INC. v. ENTERGY CORPORATION and Entergy Louisiana, Inc.
    No. 2007-C-1172.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Haynesville Town of; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. B, No. 34,578; to the Court of Appeal, Second Circuit, No. 42,-019-CA.

Denied.


text:
    Michael Randall BARDWELL v. Michael FAUST.
    No. 2007-C-1174.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Bardwell, Michael Randall; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 37,363; to the Court of Appeal, First Circuit, No. 2006 CA 1472.

Denied.

CALOGERO, C.J., would grant.

KNOLL, J., would grant.


text:
    James David WRIGHT and Robert E. Wright, Jr. v. Linda Wright Gore LARSON, et al.
    No. 2007-C-1181.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   In re Wright, James David et al.; Wright, Robert E. Jr.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 48,475; to the Court of Appeal, Second Circuit, No. 42,-101-CA.

Denied.