author: FARMER, J.

text:
    Willard CHATMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1177.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Without discussion, we affirm defendant’s multiple convictions for sexual offenses involving a minor. We pass on to the sentencing issue.

The verdict was general as to all counts, without any specific findings as to facts leading to sentencing enhancements. Nevertheless, at sentencing the trial judge assessed 160 additional points for “victim penetration.” As a result of the assessment of these additional points, defendant’s total sentencing score exceeded 363, a score that would otherwise allow an enhanced sentence of life, which was the actual sentence imposed. On appeal defendant argues a Blakely violation. We agree.

Blakely requires “ ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The verdict forms in this case did not require the jury to make a specific finding of penetration. Instead, guilt was determined only “as charged in the information.” The information charged “penetration” or “union.” Hence the verdict form did not give the jury the opportunity to specify which alternative was the basis for the finding of guilty. In fact the nature of the actual charge, sexual activity with a minor, did not even require the State to prove penetration for a finding of guilt. As in Coggins v. State, 921 So.2d 758 (Fla. 1st DCA 2006), we find the sentencing enhancement in violation of Blakely, requiring a resentencing without the assessment of the victim penetration points. See also Whalen v. State, 895 So.2d 1222 (Fla. 2d DCA 2005) (sentence could not be enhanced unless factor supporting enhancement was shown in specific finding by jury; penetration points pre-eluded where jury did not make specific finding of penetration).

Convictions Affirmed; Sentence Reversed; Remanded for Resentencing.

SHAHOOD, J, and LEWIS, TERRY P., Associate Judge, concur.

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Kevin DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1440.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Kevin Davis, appeals the trial court’s order revoking probation. The court found violations for both committing burglary of a dwelling and possession of marijuana. Davis argues the evidence presented was insufficient to connect him to the burglary, and the state failed to provide non-hearsay evidence that the marijuana came from him. With respect to the possession of marijuana claim, an officer testified that he was present when Davis was apprehended and arrested. A search incident to arrest revealed a bag of suspect marijuana, which was then field tested by the testifying officer and came back positive as marijuana. Our reading of the record convinces us that the officer was present when the marijuana was discovered. Therefore, his testimony was not hearsay as to the discovery of marijuana. Because the record discloses sufficient evidence that Davis violated his probation by possession of marijuana, we need not address Davis’ other claim. See, e.g., Davis v. State, 478 So.2d 112 (Fla. 2d DCA 1985); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974). The trial court made it abundantly clear that possession of marijuana alone was sufficient to revoke Davis’ probation.

Affirmed.

GUNTHER and FARMER, JJ., concur.


text:
    William P. REGIS, Appellant, v. WEST SUNRISE DEVELOPMENT CORPORATION, Paul E. Taylor, and Ian Gardner, Appellees.
    No. 4D05-3124.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Ira Marcus of Ira Marcus, P.A., Fort Lauderdale, for appellant.
    Ian Gardner, Sunrise, pro se.
   FARMER, J.

We reverse the summary judgment and remand for trial. The rule of Ellison v. Anderson, 74 So.2d 680 (Fla.1954) (affidavit filed in opposition to motion for summary judgment may not contradict prior deposition testimony), does not apply to an affidavit of a witness purporting to be the first expression by the witness under oath in the litigation as to a fact in dispute even though it contradicts a prior out-of-court, non-sworn statement by the witness in a corporate document. See Andrews v. Midland Nat’l Ins. Co., 208 So.2d 136, 137 (Fla. 3d DCA 1968) (holding that witness is not irrevocably bound by his first written statement upon the issues of a case); see also Lawrence v. Pep Boys Manny Moe & Jack Inc., 842 So.2d 303, 305 (Fla. 5th DCA 2003) (holding that court is required to view record evidence, including properly asserted supporting affidavits, in light most favorable to non-moving party, and if slightest doubt exists summary judgment must be reversed).

Reversed.

SHAHOOD, J., and LEWIS, TERRY P., Associate Judge, concur.


author: PER CURIAM.

text:
    In re Justice Of The Peace Rebecca CRAWFORD, Ward 6, Parish of St. Tammany, State of Louisiana.
    No. 2006-O-2385.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   JUDICIAL DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This matter comes before us on the recommendation of the Judiciary Commission of Louisiana (“Commission”), pursuant to La. Const, art. V, § 25(C), that Rebecca Crawford, Justice of the Peace, Ward 6, Parish of St. Tammany, be publicly censured and ordered to pay the cost of the prosecution of these proceedings. For the reasons that follow, we adopt the recommendation of the Commission and publicly censure Justice of the Peace Crawford.

FACTS AND PROCEDURAL HISTORY

Rebecca Crawford has been a justice of the peace in St. Tammany Parish since May 11, 1987. She is not an attorney, but has been a notary public since January 1979.

In October 2003, the Commission received an anonymous complaint which reported that Justice of the Peace Crawford had engaged in the unauthorized practice of law by preparing divorce pleadings. In response to the complaint, Justice of the Peace Crawford admitted that she had typed documents for her constituents to file in proper person, but she stated that she thought she was permitted to do so by virtue of her notarial commission. Justice of the Peace Crawford also stressed that she had stopped this practice immediately upon receipt of the anonymous complaint.

|;>On January 27, 2006, the Commission filed a Formal Charge against Justice of the Peace Crawford, alleging that she engaged in the unauthorized practice of law, in violation of state law, by preparing and notarizing divorce pleadings in sixteen specified cases. The Commission alleged that the conduct of Justice of the Peace Crawford violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary) and 2A (a judge shall respect and comply with the law and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary) of the Code of Judicial Conduct. The Commission further alleged that Justice of the Peace Crawford engaged in willful misconduct relating to her official duty and engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of La. Const, art. V, § 25(C). Justice of the Peace Crawford answered the Formal Charge and denied that she willfully or intentionally engaged in the unauthorized practice of law.

On May 8, 2006, Justice of the Peace Crawford and Special Counsel jointly filed a “Statement of Stipulated Uncontested Material Facts and Stipulated Conclusions of Law.” In the stipulated facts, Justice of the Peace Crawford admitted that she engaged in the unauthorized practice of law in sixteen specified cases, all of which were pending in the 22nd Judicial District Court for the Parish of St. Tammany, by preparing and notarizing divorce pleadings and charging a fee for her services. |3The parties also stipulated that respondent has discontinued preparing and notarizing divorce pleadings, but that at the time she did so “she had no knowledge that the ‘drawing of papers, pleadings or documents’ was deemed the ‘practice of law,’ nor that any of her actions would be deemed or considered to be the ‘practice of law.’ ” Finally, the parties stipulated that respondent assisted these individuals as a notary public and used her notary seal; she did not perform any of these actions as a justice of the peace.

Based on these stipulated facts, the parties agreed that respondent violated the Code of Judicial Conduct as charged in the Formal Charge, and engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of La. Const, art. V, § 25(C).

The Commission voted to accept the stipulated facts and legal conclusions submitted by the parties. During a brief hearing before the Commission on August 19, 2006, respondent testified on her own behalf and responded to questions posed by the Commission members. Respondent also introduced thirteen letters from persons in the Pearl River area and surrounding communities attesting to her good character.

On September 29, 2006, the Commission filed its findings and recommendation in this court, recommending that Justice of the Peace Crawford be publicly censured. It further recommended that Justice of the Peace Crawford be ordered to pay costs of $507.06.

Shortly after the Commission’s filing in this court, Justice of the Peace Crawford and Special Counsel filed a joint stipulation in which they accepted the | recommendations of the Commission. The parties also filed a motion waiving oral argument before this court and requesting that we consider the matter based on the record developed before the Commission. We granted the motion.

DISCUSSION

Because Justice of the Peace Crawford and Special Counsel have stipulated to the facts, the sole issue presented is the appropriate measure of discipline in this case. In re: Shea, 02-0643 (La.4/26/02), 815 So.2d 813. In determining an appropriate sanction, we are mindful that the primary purpose of the Code of Judicial Conduct is to protect the public rather than discipline judges. In re: Harris, 98-0570 (La.7/8/98), 713 So.2d 1138; In re: Marullo, 96-2222 (La.4/8/97), 692 So.2d 1019.

The undisputed evidence in the record establishes that Justice of the Peace Crawford performed services in sixteen cases which may only be undertaken by a person licensed to practice law under the rules of this court. The unauthorized practice of law by a non-licensed person is an affront to our exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar. See Bester v. Louisiana Supreme Court Comm, on Bar Admissions, 00-1360 (La.2/21/01), 779 So.2d 715. Additionally, it is a violation of state law under La. R.S. 37:213.

Justice of the Peace Crawford’s violation of the rules of this court and the laws of this state has the potential to undermine the public’s confidence in the integrity of the judiciary. As we explained in In re: Wimbish, 98-2882, p. 5 (La.4/13/99), 733 So.2d 1183, 1187:

The canons [of the Code of Judicial Conduct] were designed to promote a standard for judicial conduct that continuously reaffirms the integrity of the judiciary. Judges hold a unique position of administering justice. | sThey symbolize the law, and, accordingly, their actions reflect favorably or unfavorably on the judicial system. For this reason, it is important that judges comply with the laws and rules governing their conduct in a manner which promotes public confidence.

In determining the appropriate sanction for a judge or judicial officer who is subject to a disciplinary action, we have considered several non-exclusive factors. In re: Best, 98-0122 (La.10/20/98), 719 So.2d 432; In re: Chaisson, 549 So.2d 259 (La.1989). These factors are:

(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge’s official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been pri- or complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.

Applying these factors to the instant case, we find that Justice of the Peace Crawford’s misconduct occurred on multiple occasions, evidencing a pattern of conduct. While this conduct was public in nature, it did not arise from Justice of the Peace Crawford’s official duties as a justice of the peace. Moreover, personal gain was not the primary motivation for the conduct in question.

Most significantly, Justice of the Peace Crawford has acknowledged her violations of the Code, and she modified her behavior as soon as it came to her attention that she had acted wrongfully. The good faith nature of her actions is reinforced by the lack of any other complaints or disciplinary action against Justice of the Peace Crawford during the nearly twenty years she has served in her position. | fiWhile good faith is not an affirmative defense to a judicial disciplinary charge, it may be considered as a mitigating factor which militates in favor of a lesser sanction. Marullo, 96-2222 at p. 7, 692 So.2d at 1023; Chaisson, 549 So.2d at 267.

Considering all these facts, we conclude the sanction of public censure is appropriate. Accordingly, we will accept the recommendation of the Commission and publicly censure Justice of the Peace Crawford, as well as order her to pay the costs of these proceedings.

DECREE

For the reasons assigned, it is ordered that Justice of the Peace Rebecca Crawford be publicly censured for violating Canons 1 and 2 A of the Code of Judicial Conduct (1996) and Article V, Section 25(C) of the Louisiana Constitution of 1974. It is further ordered that Justice of the Peace Rebecca Crawford reimburse the Judiciary Commission of Louisiana the sum of $507.06.

JOHNSON, J., would reject the commissioner’s recommendation as too lenient.

      . An issue arose in these proceedings whether respondent failed or refused to cooperate in the investigation of this matter when she destroyed documents that were pertinent to the investigation of the complaint against her, including the divorce "questionnaire." At the hearing, respondent testified that she deleted all of the forms on her computer as soon as the complaint was filed against her so that she would not make a similar mistake in the future.
      The Commission found respondent's testimony was credible in this regard. The members also took into consideration that although respondent maintained virtually no records of her notarial business, she did obtain the requested information by whatever means she could, which were laborious, and provided it to Special Counsel. The list of cases may not include all names of those for whom respondent typed divorce petitions, but the Commission acknowledged that it includes all that respondent could identify in good faith. Accordingly, the Commission determined that respondent's actions were not the result of any intent to obstruct or delay the investigation of this matter.

      . Justice of the Peace Crawford did not stipulate that she engaged in willful misconduct relating to her official duty, as charged in the Formal Charge; however, we believe this constitutional provision is inapplicable in this case because respondent was not acting in her official capacity when she prepared and notarized divorce pleadings.


text:
    STATE of Louisiana v. Farrell PORCHE.
    No. 2006-KK-0312.
    Supreme Court of Louisiana.
    Nov. 29, 2006.

      Charles C. Foti, Jr., Attorney General, Paul D. Connick, Jr., District Attorney, Megan L. Gorman, Jacqueline F. Maloney, Assistant District Attorneys, for Applicant.
    DeSalvo, DeSalvo & Blackburn, Frank G. DeSalvo, New Orleans, F. Gerald DeS-alvo, Jr., Gretna, for Respondent.
   PER CURIAM.

hThe state has charged defendant/respondent by bill of information with possession of cocaine in an amount greater than 28 grams but less than 200 grams. La.R.S. 40:967(F)(l)(a). Respondent moved to suppress the evidence, and after conducting a hearing in March 2005, the trial court granted the motion. The Fifth Circuit denied the state’s application for review of that ruling, finding “no abuse of the trial court’s discretion in this case.” State v. Porche, 05-0982 (La.App. 5th Cir.1/10/06). We granted the state’s application to reverse the rulings below because we agree with the state that the probable cause basis for the search warrant authorizing recovery of the evidence was not derivatively tainted by any prior illegal conduct of the police.

As detailed in the affidavit of probable cause supporting the search warrant and in the testimony of Lieutenant Ronald Hoefeld at the hearing on the motion to suppress, the events leading to the seizure of cocaine in the present case began on the morning of December 30, 2003 with a call to the Jefferson Parish Sheriffs |2Office placed by Louette Young, who reported a possible burglary in progress at the Citrus Creek Apartments on Citrus Boulevard in Kenner, Louisiana. Young met with sheriffs deputies in the parking lot of the apartment complex, told them that she had heard the sound of glass breaking in her apartment and other noises from inside and expressed concern that someone had broken into her apartment and was still there. The deputies found no evidence of forced entry but entered the apartment to secure the premises and found clothing strewn throughout the apartment and several pieces of furniture pulled in front of the door leading to the master bedroom. During a protective sweep of the apartment, the deputies entered the bedroom and discovered a glass container and a sandwich bag containing a single large piece of white compressed powder on the floor next to the bed. The deputies also recovered approximately two grams of green vegetable matter from the same location. Field tests revealed the presence of marijuana and cocaine. With their putative victim now a suspect in a drug investigation, the deputies placed Young under arrest, obtained her consent to continue searching her apartment, and retrieved $1200 in various denominations of currency. They also summoned members of the Narcotics Division to take over the investigation.

Lieutenant Hoefeld, a member of the Jefferson Parish Sheriffs Office Narcotics Division, responded to the call. As the other officers on the scene briefed him on the investigation, respondent knocked at the door of the apartment. Hoefeld opened the door, informed respondent that he had stumbled onto a police investigation, and asked him to state his business. Respondent replied that he was there to see Ms. Young but that he thought he was at the wrong apartment. Hoefeld knew at the time from the other officers on the scene that Young had called respondent earlier and summoned him to the apartment. When he was | ¡¡asked about that call, respondent acknowledged that he had spoken to Young but continued to express uncertainty over whether he was at the right apartment. According to Lieutenant Hoefeld, respondent seemed “very surprised to see the police presence in the apartment and appeared to be visibly shaken by it.” The officer asked respondent if he had any identification on him and respondent indicated that his identification was in his apartment which was also located in the Citrus Creek complex.

At this point in the investigation, Lieutenant Hoefeld decided to detain respondent and he placed him in handcuffs. The officer then asked respondent if he could accompany him to his apartment to obtain his identification. Respondent agreed and led Lieutenant Hoefeld and another deputy to his apartment where he provided the officers with a key to his door. When Hoefeld opened the door, the officers immediately detected a strong acidic chemical odor which they associated with cocaine. Hoefeld noticed that respondent’s nervousness had increased and that he had begun shaking. The officer observed in the kitchen area to the immediate right of the doorway a large stack of currency on a table; he also noticed a smaller stack of currency on a table in the living room. The officer asked respondent about the money and chemical odor, and when Hoe-feld received no response, he placed respondent under arrest and gave him his Miranda warnings.

Lieutenant Hoefeld then spotted a shopping bag on the floor of the kitchen and concluded it was the source of the heavy chemical odor permeating the apartment. When he peered into the partially opened bag the officer could see numerous sandwich baggies, a black scale and several loose plastic shopping bags. Asked by Hoefeld if he had any illegal drugs in the apartment or in the shopping 14bag, respondent this time acknowledged that there was “a large amount” of drugs in the bag, by which he meant, “enough to get me.” However, respondent refused to give consent to a search of the bag. Lieutenant Hoefeld therefore got on the telephone and called in the results of his investigation. The information became the basis of the warrant application presented to the magistrate who then authorized a search of the apartment and the bag. Inside the bag the officers found a smaller, locked bank bag containing three plastic bags filled with cocaine, another bag containing marijuana, a digital scale, and four boxes of zip-lock bags in various sizes.

Lieutenant Hoefeld conceded during the suppression hearing that when he first encountered respondent he had no evidence connecting him with either the reported burglary or with the narcotics the other deputies had found in Ms. Young’s apartment. However, the officer explained that defendant’s nervous demeanor, hesitation about why he was at the doorway of Ms. Young’s apartment, and his statement that he thought he was at the wrong apartment aroused his suspicion, as he knew that Ms. Young had summoned respondent over the telephone. Lieutenant Hoefeld further explained that he had then detained respondent and placed him in handcuffs as the police attempted to confirm his identity “for our safety as well as his safety and the circumstances; not knowing exactly who was involved or who was not involved in the illegal narcotics that was found in the apartment.”

In its written reasons for granting the motion to suppress, the trial court found that respondent’s visible reaction to the officers’ presence in Ms. Young’s apartment “could be an appropriate reaction to a police investigation at a friend’s apartment.” The court further found that “without any other articulated activity, 1 Bthe police did not have the right to detain” respondent on reasonable suspicion supporting an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court therefore concluded that Lieutenant Hoefeld’s exploitation of that primary illegality derivatively tainted the warrant application’s probable cause showing and required suppression of the evidence seized in respondent’s apartment.

The trial court erred because it failed to accord due deference to the in-the-field judgment of Lieutenant Hoefeld conducting a fast-paced investigation in which the ostensible victim of a burglary had turned into a suspect in a narcotics investigation with its known attendant dangers, prompting the police to “exercise unquestioned command of the situation,” Michigan v. Summers, 452 U.S. 692, 703, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981), while they determined the nature and scope of the criminal activity they had uncovered. The police were lawfully on the premises with the consent of Ms. Young when they discovered evidence not only of narcotics possession in plain view in the master bedroom of her apartment but also of narcotics trafficking in the large amount of cash in various denominations found elsewhere in the apartment. They had thus lawfully acquired probable cause to arrest her and the officers knew from Ms. Young that respondent’s appearance at the door was not coincidental. Lieutenant Hoefeld did not immediately detain respondent but asked him pertinent questions which did not implicate the Fourth Amendment. Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 1471, 161 L.Ed.2d 299 (2005) (“We have ‘held repeatedly that mere police questioning does not constitute a seizure. [E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent |fito search his or her luggage.’ ... Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”)(quoting Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991) and omitting citations); State v. Lewis, 00-3136, p. 3 (La.4/26/02), 815 So.2d 818, 820 (“An officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave.”) (citations omitted).

It was only after respondent appeared to hesitate, in effect seeming to back away from the encounter by expressing confusion over whether he was at the correct apartment, that Lieutenant Hoefeld decided to detain respondent while they sorted out the matter of his identification. Given the rapidly changing nature of the police investigation and the uncertainty over where it was leading, respondent’s shocked demeanor and hesitancy in acknowledging that he was where he thought he should be, Lieutenant Hoefeld had the requisite minimal objective basis to detain an individual “in order to determine his identity or to maintain the status quo momentarily while obtaining more information/’ the hallmark of an investigatory stop. State v. Fauria, 393 So.2d 688, 690 (La.1981); see United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)(“The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.”)(internal citation omitted and quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)).

|7However, even granting the reasonableness of Lieutenant Hoefeld’s decision to detain respondent, the officer’s use of handcuffs poses a separate question, as a search or seizure “reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” Terry, 392 U.S. at 18, 88 S.Ct. at 1878. Inherent in the right of the police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. Mena, 544 U.S. at 99, 125 S.Ct. at 1470 (“ ‘Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.’ ”)(quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989)); United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993)(“Sinee police officers should not be required to take unnecessary risks in performing their duties, they are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry ] stop.’ ’’[(quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985)).

Nevertheless, the use of handcuffs incrementally increases the degree of force used in detaining an individual. Mena, 544 U.S. at 99, 125 S.Ct. at 1470 (“The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage.”); State v. Broussard, 00-3230, p. 4 (La.5/24/02), 816 So.2d 1284, 1287 (“ ‘There is no question that the use of handcuffs, being one of the most recognizable indicia of a traditional arrest, substantially aggravates the intrusiveness of a putative Terry stop.’ ’’[(quoting United States v. Acostar-Colon, 157 F.3d 9, 18 (1st Cir.l998)(internal quotation |smarks omitted)). Thus, because the police conducting an investigatory stop “may not ... seek to verify their suspicions by means that approach the conditions of arrest,” Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983), the use of handcuffs must appear objectively reasonable “in light of the facts and circumstances confronting [the police],” taking into account “the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397, 109 S.Ct. at 1872; Broussard, 00-3230 at 4, 816 So.2d at 1287 (“ ‘Thus, when the government seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, it must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.’ ’’[(quoting Acostar- Colon, 157 F.3d at 18-19). If the added intrusion is not warranted under particular circumstances, a Terry stop may escalate into a de facto arrest requiring probable cause to render it valid. United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir.l994)(“Beeause the specific nature of this stop [in which defendant was handcuffed and strapped into a police cruiser] was not justified under the Terry doctrine, we must treat it as an arrest, requiring probable cause.”); Broussard, 00-3230, pp. 3-4, 816 So.2d at 1287 (“[BJrevity alone does not always distinguish investigatory stops from arrests, as the former may be accompanied by arrest-like features, e.g., use of drawn weapons and handcuffs, which may, but do not invariably, render the ^seizure a de facto arrest.”)(citing Acostar-Colon, 157 F.3d at 18-19)(emphasis added).

In the present case, although “[d]rugs and guns and violence often go together, and thus this might be a factor tending to support an officer’s claim of reasonableness,” Melendez-Garcia, 28 F.3d at 1052, Lieutenant Hoefeld did not articulate any particularized reason to believe that respondent was armed or violent. In fact, it appears that the officer did not subjectively believe that respondent posed an immediate safety risk as he made no mention at the suppression hearing that he first frisked respondent for weapons before accompanying him across the apartment complex. In the absence of such particularized concerns, ordinarily “the naked fact that drugs are suspected will not support a per se justification for use of guns and handcuffs in a Terry stop.” Melendez-Garcia, 28 F.3d at 1053. The circumstances confronting Lieutenant Hoefeld thus did not compare to those in Mena, in which the police executed a warrant authorizing a search of the targeted premises for deadly weapons and evidence of gang membership during an investigation of a gang-related drive-by shooting. “In such inherently dangerous situations,” a majority of the Court concluded, “the use of handcuffs minimizes the risk of harm to both officers and occupants,” and in Mena’s case, justified a detention in handcuffs lasting two or three hours to effectuate the government’s “continuing safety interests.” Mena, 544 U.S. at 100, 125 S.Ct. at 1470-71.

On the other hand, if the degree of perceived inherent danger in the present case does not compare to that in Mena, nor does the length of the detention of respondent in handcuffs, which lasted only for a presumably short walk from Young’s apartment to respondent’s and the few moments inside before Lieutenant |! nHoefeld detected the pervasive chemical odor, saw the stacks of currency, and peered into the partially opened bag stuffed with narcotics paraphernalia, and thereby acquired probable cause for a full-blown custodial arrest in which the use of handcuffs reflects no more than routine police procedure. Because he was attacking a facially valid warrant issued by a magistrate, respondent had the burden on the motion. La.C.Cr.P. art. 703(D). However, he presented no evidence at the hearing that the manner in which Lieutenant Hoefeld handcuffed him, either with his hands in front of him or behind his back, caused “real pain or serious discomfort,” Mena, 544 U.S. at 103, 125 S.Ct. at 1472 (Kennedy, J., concurring), sufficient to render the continued use of handcuffs until the investigation culminated in his arrest moments later unreasonable even if justified at the outset. In addition, the initial detention of respondent lacked other indi-cia of a de facto arrest. The officers did not place him in a patrol unit, Melendez-Garcia, 28 F.3d at 1050, or otherwise relocate him from the scene to a more secure area. Acosta-Colon, 157 F.3d at 12 (defendant relocated from jetway to customs inspection area); cf. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)(relocation of suspect from home to station house for investigative questioning). Instead, they escorted him from the secured area of Young’s apartment to a completely unsecured area, i.e., his own apartment in the same complex, under uncertain circumstances for purposes of confirming his identity. Despite some concerns about the objective reasonableness of Lieutenant Hoefeld’s conduct, given the brevity of respondent’s detention in handcuffs before he was lawfully arrested, and the changing nature of the police investigation which had begun to focus on a possible link of respondent and Young to narcotics trafficking, and giving due deference to the decisions made in the field by police h officers under the press of “tense, uncertain, and rapidly evolving” circumstances, Graham, 490 U.S. at 397, 109 S.Ct. at 1872, we cannot say that Lieutenant Hoefeld’s conduct in securing relator’s hands to minimize any risk entailed by entering his apartment for his identification escalated the Terry stop into a de facto arrest unsupported by probable cause.

Accordingly, we find that respondent’s consent to the search of his apartment by Lieutenant Hoefeld was not tainted by any prior illegal conduct of the police and that the police came at the probable cause basis for the continued search of the apartment and the tell-tale bag by lawful means. The trial court’s judgment granting respondent’s motion to suppress is therefore vacated, the motion is denied, and this case is remanded to the district court for further proceedings consistent with the views expressed herein.

TRIAL COURT’S RULING REVERSED; MOTION TO SUPPRESS DENIED; CASE REMANDED.


text:
    In re Eddie Douglas AUSTIN, Jr.
    No. 2006-B-0630.
    Supreme Court of Louisiana.
    Nov. 29, 2006.

      Charles B. Plattsmier, Bernadine Johnson, Baton Rouge, for Applicant.
    The Law Offices of James E. Boren, James E. Boren, Baton Rouge, John Green, Eddie D. Austin, Jr., Lake Charles, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|! This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Eddie Douglas Austin, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Prior to attending law school, respondent worked as a stockbroker for approximately twelve years. After being admitted to the bar in 1990, respondent set up his law practice in Lake Charles.

In late 1996, another attorney, Lawrence Babineaux, began practicing law out of respondent’s office. Although the exact nature of the relationship between respondent and Mr. Babineaux was never reduced to writing, it appears Mr. Babineaux was largely responsible for organizing and operating respondent’s personal injury business. Respondent paid Mr. Babineaux the sum of $2,000 per month for this work. Mr. Babineaux also had his own clients. In lieu of paying rent to respondent, Mr. Babineaux agreed to pay respondent one-half of all attorney’s fees he derived from his own clients. Mr. Babineaux did not have a client trust account |2and therefore used respondent’s client trust account for all cases he brought to the firm during the period of his association with respondent.

In early 1997, Mr. Babineaux began representing Annie Laura Hutto. Ms. Hutto, an elderly woman who was a long time friend of Mr. Babineaux’s family, retained Mr. Babineaux to assist her in collecting a substantial inheritance from a relative in Texas. Between February 17, 1997 and March 17, 1997, Mr. Babineaux received sums totaling $338,535.36 on Ms. Hutto’s behalf, all of which he deposited into respondent’s trust account. Mr. Babineaux and Ms. Hutto did not enter into a written fee agreement in connection with the representation; however, Mr. Babineaux billed Ms. Hutto a total of $7,917.50 in hourly fees, which he in turn split with respondent pursuant to their office-sharing arrangement.

During her consultations with Mr. Babi-neaux, Ms. Hutto expressed a desire to earn a greater return on her funds than the minimal interest paid on bank deposits. She also requested Mr. Babineaux’s assistance in preserving and protecting the funds for her five adult children.

Because of respondent’s background as a stockbroker, Mr. Babineaux approached him about Ms. Hutto’s concerns and financial needs. Respondent suggested to Mr. Babineaux that under certain conditions he would be able to guarantee a return of 10% on Ms. Hutto’s investment, while still providing for her monthly needs and those of her children. Later, respondent met with Mr. Babineaux and Ms. Hutto to discuss this matter. Respondent and Ms. Hutto agreed that respondent would retain a portion of Ms. Hutto’s funds and would pay Ms. Hutto $2,000 per month, along with payments of $500 per month to each of .her children, with interest at a rate of 10%. However, this agreement was never reduced to writing.

|sOn January 1, 1998, Mr. Babineaux began working part-time for the Calcasieu Parish District Attorney’s Office. Mr. Ba-bineaux left respondent’s office in March 1998 to accept a full-time position with the district attorney.

In May 1998, Ms. Hutto retained Lake Charles attorney Evelyn Oubre to represent her. Shortly thereafter, Ms. Oubre, on behalf of Ms. Hutto, terminated respondent’s services and requested an aeeount-ing of the distribution and handling of Ms. Hutto’s funds. On July 14, 1998, Mr. Ba-bineaux paid Ms. Oubre $5,000 in cash and agreed to cooperate in any action against respondent in exchange for a release of liability from Ms. Hutto. On July 17, 1998, Ms. Oubre filed a civil suit against respondent on behalf of Ms. Hutto, seeking an accounting and the production of all documents in his possession concerning Ms. Hutto. Annie Laura Hutto v. Eddie Austin, Jr., No. 98-4094 on the docket of the 14th Judicial District Court for the Parish of Calcasieu. On the same day, the trial court issued a temporary restraining order preventing respondent from “encumbering, alienating, destroying, damaging, wasting, secreting, or disposing of any property owned by” Ms. Hutto.

In the course of the civil suit, an issue was raised regarding the existence of an attorney-client relationship between respondent and Ms. Hutto. Respondent denied that he was ever Ms. Hutto’s attorney. On July 30, 1998, Ms. Hutto gave sworn testimony in open court in which she denied that respondent acted as her attorney:

Q. Ms. Hutto, in the year of 1996, 1997, 1998, was Mr. Eddie Austin your attorney?
A. Well, no, Lawrence Babineaux was my attorney, but Eddie — Eddie Austin gave^ — I mean, Lawrence gave Eddie Austin my money.

In a deposition taken on September 23, 1998, Ms. Hutto was asked whether respondent “ever handle[d] any legal cases” for her. Ms. Hutto replied, “No, I’ve only seen him three times, well, counting the other day in court.”

|4On November 30, 2001, the civil suit was settled. Among other stipulations, the parties agreed as follows:

... Annie Laura Hutto received a total of $338,535.36 from the estate of Pete Martin. That said funds were given to Eddie Austin, Jr. for Eddie Austin, Jr. to invest and to disburse back to Annie Laura Hutto as requested by Annie Laura Hutto.
... Eddie Austin, Jr. did validly and legally disburse the total sum of $153,589.23 of Annie Laura Hutto’s monies.
... Eddie Austin, Jr. shall reimburse Annie Laura Hutto for all attorney’s fees, expenses, and court costs expended in the prosecution of this action. This sum is $4,000.00.
... Eddie Austin, Jr. does owe to Annie Laura Hutto the total sum of $188,946.13. This figure shall be paid as follows:
1. $75,000 by cashier’s check paid simultaneously with Eddie Austin, Jr. signing this document;
2. The remaining sum of $113,946.13 shall be paid at the rate of $4,000.00/ month, plus 10% interest from the date of judicial demand (July 17, 1998)....

Ms. Hutto dismissed her civil suit without prejudice in January 2002. In June 2004, Ms. Hutto died at the age of 80.

DISCIPLINARY PROCEEDINGS

Complaint by Ms. Hutto

In August 2000, while the civil suit was still pending, Ms. Hutto filed a complaint against respondent with the ODC, stating that respondent “was recommended by my lawyer, Lawrence Babineaux, as a broker and he spent it. About $221,000.” In his response to the complaint, respondent denied that he had an attorney-client relationship with Ms. Hutto. Respondent also stated that Ms. Hutto 1 ¡Jiad agreed to lend him the funds she received from her inheritance, which loan respondent would repay as follows: (1) respondent agreed to pay Ms. Hutto a minimum of 10% and a maximum of 12% on her money; (2) respondent would pay Ms. Hutto $2,000 per month, and would pay each of her five children $500 per month until each one had received $10,000; (3) respondent would, with reasonable notice, advance money to Ms. Hutto “for things that she might desire that could not be paid out of the $2,000.00 per month,” such as improvements to her home; and (4) respondent could lend the money out or invest the money as he saw fit, at his risk.

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent, alleging that his conduct constituted a violation of Rules 1.8(a) (prohibited business transactions between a lawyer and client), 1.14 (client under a disability), 1.15(a)(b)(c) (safekeeping property of clients or third persons), 2.1 (a lawyer shall exercise independent professional judgment in representing a client), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Respondent answered the formal charges and denied any misconduct. Among other contentions, respondent denied that he had an attorney-client relationship with Ms. Hutto or that he performed any legal work on her behalf.

Formal Hearing

Prior to the hearing, respondent and the ODC entered into a joint stipulation of facts, including a stipulation that respondent has made all payments called for | sunder the settlement agreement with Ms. Hutto, and as a result, he is no longer indebted financially to Ms. Hutto or her heirs in any way. The parties also stipulated to the admission of numerous exhibits.

The ODC called no witnesses at the hearing. Respondent testified on his own behalf and on cross-examination by the ODC. He also presented the live testimony of Mr. Babineaux.

Hearing Committee Recommendation

Following the hearing, the hearing committee filed its report recommending that the formal charges against respondent be dismissed. In reaching this conclusion, the committee made a factual finding that the ODC failed to present clear and convincing evidence establishing that an attorney-client relationship existed between respondent and Ms. Hutto. The committee relied on Mr. Babineaux’s testimony that he (Babineaux) was Ms. Hutto’s attorney and that she always understood him to be her lawyer. It further noted that respondent testified that he never rendered any legal advice to Ms. Hutto, never agreed to be her lawyer, and never established an attorney-client relationship with her. Rather, respondent only acknowledged that he had a business relationship with Ms. Hutto that involved investing and managing certain funds. According to the committee, the ODC failed to effectively rebut this testimony and failed to put forth sufficient facts to establish by clear and convincing evidence that respondent was Ms. Hutto’s lawyer.

The committee acknowledged this court’s prior jurisprudence holding that the existence of an attorney-client relationship turns largely on the client’s subjective |7belief that it exists. In re: LeBlanc, 04-0681 (La.10/14/04), 884 So.2d 552; Louisi ana State Bar Ass’n v. Bosworth, 481 So.2d 567 (La.1986). In the instant case, however, the committee could find nothing to suggest that Ms. Hutto had a subjective belief that respondent was her attorney:

Hutto testified at a hearing in the 14th Judicial District Court and failed to state that [respondent] was her lawyer. In a deposition, Ms. Hutto did not consider Respondent to be her lawyer. In her complaint, Ms. Hutto failed to list Respondent as her lawyer. While there may be circumstantial evidence suggesting the existence of an attorney client relationship and while there can be speculation about how Ms. Hutto may have testified at the hearing had she not died, the simple, direct facts before the Committee showed that she had no “subjective belief’ that Respondent was her lawyer. Circumstantial proof and speculation controverted by directed testimony and direct evidence cannot rise to the level of clear and convincing.

Having found no attorney-client relationship, the committee reasoned there could be no violation by respondent of Rules 1.8(a), 1.14, 1.15, or 2.1 of the Rules of Professional Conduct.

The committee also found no violation of Rules 8.4(a) or 8.4(c), noting that the ODC did not allege, nor did the evidence show, that respondent engaged in theft or fraud. While the committee observed that respondent could have reduced his agreement with Ms. Hutto to writing, it found there was no evidence presented which proved that his failure to do so was dishonest or deceitful. To the contrary, the committee found respondent invested the money and made payments to Ms. Hutto with interest, and there was no harm to Ms. Hutto. As to Rule 8.4(a), the formal charges do not allege that respondent assisted or helped Mr. Babineaux to violate the Rules of Professional Conduct, and no such evidence was presented.

Based on this reasoning, the committee determined that the ODC failed to prove by clear and convincing evidence that respondent violated the Rules of | ^Professional Conduct. Accordingly, the committee recommended that the formal charges be dismissed.

The ODC objected to the hearing committee’s report and recommendation “as inconsistent with the facts and evidence.”

Disciplinary Board Recommendation

The disciplinary board rejected the hearing committee’s finding that no attorney-client relationship existed between respondent and Ms. Hutto. Rather, relying on the “objective facts,” the board concluded respondent was Ms. Hutto’s attorney.

Having found an attorney-client relationship, the board determined that respondent violated Rule 1.8(a) by engaging in a business transaction with a client without complying with the safeguards set forth in the rule. It also concluded respondent violated Rule 1.15 when he withdrew Ms. Hutto’s funds from his trust account without notifying her or providing her with any sort of documentation, promissory note, or receipt for the funds. Finally, by exploiting the representation by entering into a business transaction with a client without offering the appropriate safeguards, respondent failed to exercise independent professional judgment in violation of Rule 2.1. However, like the hearing committee, the board found no violation of Rule 1.14, pertaining to a client under a disability, or of Rule 8.4(c).

|aThe board determined the applicable baseline sanction is suspension. In aggravation, the board recognized that Ms. Hut-to, an elderly and unsophisticated woman, was a vulnerable victim. In mitigation, the board found that respondent has no prior disciplinary record and lacked a dishonest or selfish motive. It also noted Ms. Hutto suffered no harm as a result of respondent’s conduct, since it was stipulated that Ms. Hutto or her heirs have been fully repaid.

Based on these factors, the board recommended that respondent be suspended from the practice of law for one year. The board further recommended that respondent be assessed with all costs and expenses of these proceedings.

Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

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

The crucial issue in this case is whether an attorney-client relationship existed between respondent and Ms. Hutto. The Restatement (Third) of the Law LoGoverning Lawyers § 14 (2000) provides some guidance in determining when an attorney-client relationship arises. That section provides, in pertinent part:

A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services....

Applying this test to the instant case, we find the undisputed facts establish that Ms. Hutto did not manifest an intent that respondent provide legal services for her. To the contrary, Ms. Hutto’s testimony, taken in connection with the earlier civil proceedings, reveals that Ms. Hutto twice denied under oath that respondent was her attorney or that he “ever handle[d] any legal cases” for her. Rather, Ms. Hutto steadfastly indicated her attorney was Mr. Babineaux.

Moreover, even assuming arguendo that Ms. Hutto could have believed respondent was her attorney, there is nothing in the record to indicate respondent consented to perform legal services for her or that he had a reasonable basis to believe that she was relying on him for such services. The testimony of respondent and Mr. Babi-neaux, both of whom were found to be credible witnesses by the hearing committee, establishes that respondent contracted with Ms. Hutto to perform investment services for her. Obviously, performing investment services does notln constitute the practice of law, as these services are typically offered by non-attorneys such as stockbrokers or investment consultants.

In reaching this conclusion, we recognize there can be a potential for confusion when an attorney wears a multitude of hats. To protect the client, this court has given great deference to the client’s subjective belief whether an attorney-client relationship exists. See LeBlanc and Bosworth, supra. Nonetheless, the overarching question is whether there is a reasonable, objective basis to determine that an attorney-client relationship has formed. See Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir.1991). In the instant case, the client’s subjective belief and the objective facts unite to form one inescapable conclusion: no attorney-client relationship ever existed between respondent and Ms. Hutto.

Having made this finding, we conclude the ODC has failed to prove by clear and convincing evidence that respondent violated Rules 1.8(a), 1.14, 1.15(a)(b)(c) and 2.1. The existence of an attorney-client relationship is a prerequisite for proving hj>a violation of these rules. Because the ODC has not proven an attorney-client relationship, there can be no violation of these rules.

The remaining charges, alleging violations of Rule 8.4(a) and 8.4(c), do not necessarily hinge on the existence of an attorney-client relationship. Nonetheless, we do not find the ODC has demonstrated by clear and convincing evidence that respondent violated these provisions.

Rule 8.4(a) prohibits an attorney from violating the Rules of Professional Conduct, knowingly assisting or inducing another to do so, or violating the rules through the acts of another. While Mr. Babineaux may have committed professional violations in the course of his representation of Ms. Hutto, there is no evidence that respondent induced him to commit these violations or that respondent acted through Mr. Babineaux to violate the rules. To the contrary, the evidence indicates Mr. Babineaux’s representation of Ms. Hutto was largely completed at the time he approached respondent regarding investment of the inheritance proceeds. Thus, we find no violation of Rule 8.4(a).

Rule 8.4(c) prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. In declining to find a violation of this rule, the committee found there was no evidence indicating respondent’s dealings with Ms. Hutto were dishonest or deceitful, or that he engaged in fraud and misrepresentation. Instead, the committee found the evidence supported the conclusion that respondent invested the funds and made payments to Ms. Hutto with interest, as he promised. Additionally, the committee found there was no harm to Ms. Hutto, because she and her heirs lost no money as a result of respondent’s actions. | [¡¡Based on our review of the record, we cannot say the hearing committee’s factual findings are clearly wrong. Accordingly, we find no violation of Rule 8.4(c).

In making these findings, we do not mean to condone respondent’s actions in this case. As a person trained in the law, respondent should have realized that entering into an unwritten investment arrangement with an unsophisticated person involving a substantial sum of money was a transaction fraught with danger. Although we do not find respondent acted dishonestly under the evidence presented, the potential for mischief under such a nebulous agreement is obvious. We take this opportunity to caution respondent, as well all other members of the bar, to be especially vigilant in dealing with the public to avoid the possibility of harm, even when acting outside of the role as attorney.

In summary, we conclude that based on the record before us, the ODC has failed to prove by clear and convincing evidence that respondent violated the Rules of Professional Conduct as charged. Accordingly, we must dismiss the charges against respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the formal charges against respondent, Eddie Douglas Austin, Jr., be and hereby are dismissed.

JOHNSON, TRAYLOR and KNOLL, JJ., dissent.

      . Respondent did not withhold Social Security or state or federal taxes from the monthly payments to Mr. Babineaux; he issued a Form 1099 for tax reporting purposes. Respondent did pay Mr. Babineaux's life and health insurance premiums.

      . Ms. Hutto had previously received an inheritance that she spent in relatively short order; therefore, she wanted to make sure that did not happen again.

      . The committee acknowledged that Ms. Hut-to had died by the time of the hearing, but noted that the ODC failed to take her sworn statement prior to her death when it "had both the opportunity and time to do so.”

      . The board recognized the "subjective belief" standard enunciated in Bosworth, supra, but noted that the existence of an attorney-client relationship does not turn solely on the subjective belief of the client. In the instant matter, the board found "the objective facts and law establish an attorney-client relationship.”

      . The board noted that although Ms. Hutto was elderly and unsophisticated, it was not proven that she was disabled. Therefore, Rule 1.14 is not implicated. The board also found no evidence of dishonesty, fraud, deceit, or misrepresentation in respondent's business and investment relationship with Ms. Hutto, and accordingly, found no violation of Rule 8.4(c).

      . Indeed, even in her complaint to the ODC, Ms. Hutto did not characterize respondent as her lawyer. Rather, she indicated that respondent "was recommended by my lawyer, Lawrence Babineaux, as a broker ...[emphasis added]

      . In Sheinkopf, the court stated:
      Human beings routinely wear a multitude of hats. The fact that a person is a lawyer, or a physician, or a plumber, or a lion-tamer, does not mean that every relationship he undertakes is, or can reasonably be perceived as being, in his professional capacity. Lawyers/ physicians/ plumbers/ lion-tamers sometimes act as husbands, or wives, or fathers, or daughters, or sports fans, or investors, or businessmen. The list is nearly infinite. To imply an attorney-client relationship, therefore, the law requires more than an individual’s subjective, unspoken belief that the person with whom he is dealing, who happens to be a lawyer, has become his lawyer. If any such belief is to form a foundation for the implication of a relationship of trust and confidence, it must be objectively reasonable under the totality of the circumstances. We agree with the court below that this threshold was not crossed in the instant case, [emphasis in original]

      . In argument before this court, the ODC placed great emphasis on the fact that respondent, pursuant to his arrangement with Mr. Babineaux, received a portion of the fees collected by Mr. Babineaux from Ms. Hutto. To the extent the arrangement between respondent and Mr. Babineaux could be viewed as a division of fees between attorneys who are not in the same firm, it might be argued that respondent violated Rule 1.5(e) by taking a fee without providing legal services to Ms. Hutto. However, the ODC did not allege nor prove a violation of Rule 1.5(e) and we therefore express no opinion as to this issue.

      . In a separate opinion rendered this day, we have accepted a joint petition for consent discipline proposed by Mr. Babineaux and the ODC.