text:
    In re Jo Anne FLEMING.
    No. 2007-B-0843.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Jo Anne Fleming, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Fleming, 04-0783 (La.4/7/04), 871 So.2d 1086.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC originally filed four sets of formal charges against respondent, consisting of a total of 44 counts of misconduct. Respondent answered the first set of formal charges and denied any misconduct. The factual allegations of the remaining three sets of formal charges were deemed admitted upon respondent’s failure to file an answer thereto.

The formal charges were considered by separate hearing committees, then consolidated by orders of the disciplinary board. The board then filed in this court a single recommendation of permanent disbarment encompassing all of the formal charges. In its report, the disciplinary board recommended that the first set of formal charges be dismissed, on the ground that the ODC did not carry its burden of proving the alleged misconduct by clear and convincing evidence. The ODC did not object to the board’s recommendation in this regard, and accordingly, the first set of formal charges will not be further discussed herein. Rather, we confine our opinion to the ^remaining three sets of formal charges, which consist of a total of 42 counts of misconduct, as follows.

FORMAL CHARGES

02-DB-058

Count I — The Williams Matter

Virginia Williams paid respondent $1,500 plus court costs for representation in a child support matter. Ms. Williams had great difficulty communicating with respondent. Respondent did not complete the representation and did not refund any portion of the fee. She also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Williams.

Count II — The Wently Matter

Adlean Wently paid respondent $2,000 to represent her before the Planning Commission. Ms. Wently had great difficulty communicating with respondent, and terminated the representation; however, respondent refused to refund any unearned fees. She also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Wently.

Count III — The Minor Matter

Ingrid Minor paid respondent $2,500 to represent her in a child custody and visitation matter. Ms. Minor had great difficulty communicating with respondent, and terminated the representation; however, respondent refused to refund any unearned fees.

1 sCount IV — The Rogers Matter

Margaret Rogers paid respondent $1,500 plus court costs to represent her in a divorce and related matters. Respondent did not complete the representation, nor refund any fees.

Count V — The Knatt Matter

Dr. Theodore Knatt paid respondent $25,000 to represent him in a custody matter. Dr. Knatt discharged respondent several months later, but respondent delayed the return of the file for some months, and refused to refund any fees. She also failed to cooperate with the ODC in its investigation of the complaint filed by Dr. Knatt.

Count VI — The Nezianya Matter

Francis Nezianya paid respondent $3,250 to represent him in a divorce and to handle the incorporation of a business. Respondent did not complete the representation, nor refund any fees.

Count VII — The Dawkins Matter

Cornelia Dawkins paid respondent $10,000 to represent her in divorce, custody, and support matters. Ms. Dawkins discharged respondent because of delays and communication problems, but respondent refused to refund any fees.

Count VIII — The Hutchinson Matter

Ora Hutchinson paid respondent $1,000 towards a total fee of $15,000 to handle a criminal matter, then could not pay the remainder of the fee and requested a refund. Respondent refused to comply with Ms. Hutchinson’s request. She also Rfailed to cooperate with the ODC in its investigation of the complaint filed by Ms. Hutchinson.

Count IX — The James Matter

Mr. and Mrs. Robert James paid respondent $2,500 to handle a child custody matter. After continuing problems with communication and no evidence of progress in the matter, Mr. and Mrs. James terminated respondent’s representation and requested a refund of the fee they paid. Respondent refused to refund the fee.

The ODC alleges that respondent’s conduct in 02-DB-058 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), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(g) (failure to cooperate with the ODC in its investigation).

02-DB-119

Count I — The Ceasar Matter

Constance Whitley Ceasar paid respondent $5,000 to handle a child custody case. Following an adverse ruling in the case, respondent filed an untimely writ application on behalf of Ms. Ceasar and did not follow the applicable rules of the court of appeal. As a result, the court of appeal refused to consider Ms. Ceasar’s writ application. Respondent did not notify Ms. Ceasar of this action until three months later. Ms. Ceasar terminated respondent’s representation and requested a refund of the fee she paid; however, no refund or accounting was provided.

| JPount II — The Sanders Matter

Eric Sanders paid respondent $1,000 to investigate a- criminal charge pending against his nephew. Despite numerous requests, respondent did not communicate with the family. Following the termination of her representation, respondent refused to refund any fees or provide an accounting to her clients. She also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Sanders.

The ODC alleges that respondent’s conduct in 02-DB-119 violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3, 1.4,1.16(d), 8.1(c), and 8.4(g).

05-DB-081

Count I — The Richardson Matter

Donald Richardson paid respondent $2,500 to represent him in a domestic matter. Mr. Richardson had great difficulty communicating with respondent, and terminated the representation; however, respondent refused to refund any unearned fees. She also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Richardson.

Count II — The Stewart Matter

Ellen Stewart paid respondent $1,000 to defend her in a garnishment matter. Following numerous unsuccessful attempts to contact respondent, Ms. Stewart requested in writing the return of the fee she paid. Respondent failed to respond to Ms. Stewart’s'request. She also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Stewart.

| JJount III — The Gilyard Matter

Isaac Gilyard, Jr. paid respondent a total of $14,500 to handle a divorce and ancillary matters. Respondent failed to communicate with Mr. Gilyard and neglected his various legal matters. She also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Gilyard.

Count TV — The Miles Matter

Sharon Miles paid respondent $7,500 to handle a divorce and community property settlement. Ms. Miles’ phone calls and requests for information were ignored by respondent, and Ms. Miles requested a refund of the attorney’s fees she paid. Respondent failed to provide a refund. She also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Miles.

Count V — The Price Matter

James Price paid respondent $1,500 to handle a community property dispute. After numerous failed attempts to contact respondent, Mr. Price requested a refund of the attorney’s fee he paid. Respondent failed to provide a refund. She also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Price.

Count VI — The Richard Matter

Romeekia Richard paid respondent $2,500 to represent her at a school board hearing. After many continuances of the hearing due to respondent’s illness or because of scheduling conflicts (during which time Ms. Richard was suspended without pay pending each new hearing date), respondent advised Ms. Richard not to attend the last hearing date scheduled since respondent had not received notice. As |7a result of the non-attendance, Ms. Richard was terminated from her job. The school board attorney provided records evidencing proper notice of the hearing to respondent. Respondent advised she would seek an appeal, but failed to do so, and Ms. Richard was forced to hire new counsel after repeated unsuccessful attempts to contact respondent. Ms. Richard sent a termination letter to respondent with a request for her file and a return of fees, to which respondent did not reply. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Richard.

Count VII — The Judson Matter

Isadore Judson paid respondent $1,650 to handle a divorce and to prepare his will. Over the next year, Mr. Judson made numerous attempts to contact respondent, all to no avail. Mr. Judson then learned that his wife had obtained a judgment of divorce. Respondent did not comply with Mr. Judson’s request for the return of his file and a refund of fees, nor did she provide any services in connection with the will. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Judson.

Count VIII — The Veal Matter

In February 2003, Chette Veal paid respondent $1,500 to appear on his behalf at a March 10, 2003 hearing on a motion to increase child support. On March 11, 2003, respondent informed Mr. Veal that the motion to increase support had been denied because he had not been properly served with the motion. On March 13, 2003, Mr. Veal received a bench warrant notification from the Support Enforcement Agency advising that no one was present at the hearing, and that his child support Isobligation had been increased from $111 to $446.25 a month, effective immediately. Mr. Veal then learned that respondent had never contacted the agency to advise of her representation. By letter dated March 19, 2003, Mr. Veal terminated respondent’s representation and requested that she refund the attorney’s fee he paid. Respondent did not comply with Mr. Veal’s request until May 2003. She also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. and Mrs. Veal.

Count IX — The Stevens Matter

Ida Stevens paid respondent $6,000 to represent her at a school board hearing. Respondent requested a continuance of the hearing without Ms. Stevens’ permission, resulting in her suspension without pay pending a new hearing date. Respondent assured Ms. Stevens that she would appear at the hearing and that there was no need for Ms. Stevens to attend. However, respondent failed to appear at the hearing, and as a result, Ms. Stevens was terminated from her job. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Stevens.

Count X — The Marshall Matter

Willie Marshall paid respondent $1,000 to handle a property matter. Thereafter, respondent failed to return Mr. Marshall’s phone calls or perform any work in furtherance of the representation. She also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Marshall.

Count XI — The Gilmore Matter

Sheryl Gilmore retained respondent to pursue a products liability matter. After numerous unsuccessful attempts to contact respondent, Ms. Gilmore terminated the ^Representation and hired new counsel. Thereafter, respondent ignored requests to provide Ms. Gilmore’s file to her counsel. She also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Gilmore.

Count XII — The Videau Matter

Jeanette Videau paid respondent $4,925 towards a $5,000 fee to investigate the circumstances surrounding her son’s imprisonment in Texas. The fee was to cover respondent’s round-trip visit to the prison, courts costs to obtain records, and other expenses involved. Four months later, respondent advised Ms. Videau that she would require a $30,000 fee to take on the representation. Respondent did not provide the services agreed upon for the original fee. Ms. Videau was unsuccessful in numerous attempts to contact respondent by phone and mail. Respondent did not comply with Ms. Videau’s written request for an accounting and itemization of services, nor did she cooperate with the ODC in its investigation of the complaint filed by Ms. Videau.

Count XIII — The Hammond Matter

Carolyn Hammond paid respondent $2,500 to represent her in a child support matter. After numerous unsuccessful attempts to contact respondent, Ms. Hammond terminated the representation and requested the return of her file and a refund of fees. Respondent failed to comply with Ms. Hammond’s request. She also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Hammond.

Count XIV — The Martin Matter

Lawrence Martin paid respondent $2,300 towards a $5,000 fee to represent him in a DWI matter. Respondent failed to appear for scheduled hearings in the case, |infailed to communicate with Mr. Martin, and failed to perform any services on his behalf, forcing Mr. Martin to hire another attorney. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Martin.

Count XV — The Haysbert Matter

Alex Haysbert, Jr. paid respondent $3,500 to represent him in a paternity suit. Respondent appeared at the first hearing in the case solely to request a continuance. After numerous requests, respondent met with Mr. Haysbert for only 15 minutes to prepare for the next hearing. On the date of the hearing, respondent appeared just before the case was called, and Mr. Hays-bert alleges that respondent did not adequately cross-examine plaintiff, and did not allow Mr. Haysbert to testify. The judge ruled against Mr. Haysbert. Respondent offered no explanation for the ruling but told Mr. Haysbert she would meet with him later. After numerous attempts to contact respondent, Mr. Haysbert went to respondent’s office and was given the next hearing date, but no other information. When Mr. Haysbert arrived in court, he was advised that the case was not going to be heard, and he was ordered to pay $3,000 to the opposing attorney due to respondent’s delays. After several more failed attempts to reach respondent by telephone, and a certified mailing to respondent which was never claimed, Mr. Haysbert filed a disciplinary complaint. Respondent failed to cooperate with the ODC in its investigation of the complaint.

Count XVI— The Fleming Matter

Michael Fleming paid respondent $1,500 to represent him in a divorce matter. Early in the representation, respondent advised that she was working on the case, but InMr. Fleming’s subsequent attempts to contact her were unsuccessful, and ultimately he discovered that respondent’s telephone had been disconnected. To Mr. Fleming’s knowledge, respondent performed no work on his behalf. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Fleming.

Count XVII — The Chase Matter

John Chase hired respondent to represent him in a class action lawsuit against Exxon. Despite attempts to contact respondent, Mr. Chase was unable to communicate with her regarding the status of his case. Mr. Chase eventually found respondent’s phone disconnected and her office closed. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Chase.

Count XVIII — The Jimison Matter

Johnson Jimison paid respondent $1,500 to handle a visitation and child support matter. Following a hearing, respondent was instructed by the trial judge to submit a judgment for his signature within ten days. Mr. Jimison did not receive the judgment from respondent and was unable to reach her regarding the matter, despite his numerous attempts to contact her by phone, fax, and certified mail. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Jimison.

Count XIX — The Miller Matter

Emma Tate Miller paid respondent $2,500 to represent her in a divorce proceeding. Respondent appeared at one hearing in the case, but failed to appear at the next scheduled hearing. Despite numerous phone calls and letters, Ms. Miller was ligunable to communicate with respondent about her case. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Miller.

Count XX — The Young Matter

Jason Young paid respondent $1,500 to represent him in a divorce matter. Despite numerous attempts to contact respondent, Mr. Young was unable to communicate with her about his case. Respondent did no work in furtherance of the divorce, and did not refund Mr. Young’s fee. She also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Young.

Count XXI — The Wicker Matter

Frederick Wicker, Sr. paid respondent $1,500 to represent him in a child support and community property matter. Mr. Wicker was later unable to contact respondent, and knowing of no work she had done on his behalf, he was forced to hire other counsel to represent him. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Wicker.

Count XXII — The Himel Matter

Nearylyn Himel hired respondent to represent her in a class action case against a prescription drug manufacturer. Ms. Himel gave respondent all of her original records needed to support the claim, but she never received copies of the documents from respondent. Numerous attempts by Ms. Himel to contact respondent were unsuccessful, and on her last attempt, she discovered that respondent’s telephone was disconnected. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Himel.

_JjgCount XXIII — The Mitchell Matter

Clem Mitchell, Jr. hired respondent to represent him in a child support matter. Respondent failed to appear in court at a scheduled hearing in the case and failed to contact Mr. Mitchell regarding the matter. Respondent’s neglect of the case resulted in the garnishment of Mr. Mitchell’s retirement, and an appropriate appeal was not filed. Furthermore, respondent had previously represented Mr. Mitchell’s opposing party, but she failed to inform him of the conflict. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Mitchell.

Count XXIV— The Spears Matter

George Spears paid respondent $47,000 to represent him in a criminal matter. An additional $8,000 was collected by respondent for payment to a bail bondsman. Mr. Spears subsequently advised respondent that he was not going to pay any additional fees as he was unaware of any work accomplished toward his representation. Thereafter, respondent refused to return Mr. Spears’ telephone calls. Despite repeated attempts, Mr. Spears was unable to communicate with respondent, and on his last attempt, he discovered that respondent’s telephone had been disconnected. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Spears.

Count XXV — The Turner Matter

Shawn Turner and his mother, Carolyn Turner, hired respondent to represent them in a class action lawsuit against Exxon. Thereafter, the Turners received no further information regarding their case, and despite numerous attempts, they were 1 Uunable to contact respondent. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by the Turners.

Count XXVI — The Davis Matter

Claudia Davis hired respondent to represent her in a claim for damages against a prescription drug manufacturer. Despite numerous attempts, Ms. Davis was unable to communicate with respondent about her case. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Davis.

Count XXVII — The Judson Matter

In 1998, Aleñe Judson paid respondent $1,500 to represent her in a community property matter. Ms. Judson made numerous unsuccessful attempts to contact respondent regarding her case. She eventually learned that respondent’s office was permanently closed. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Judson.

Count XXVIII — The Unauthorized Practice of Law Matter

By order dated December 10, 2003, this court transferred respondent to interim disability inactive status pending a hearing to determine the validity of her claim that she was then unable to defend the disciplinary proceedings against her due to mental or physical incapacity. Notwithstanding that she was unable to practice law at this time, respondent appeared in the East Baton Rouge Parish Family Court on December 17, 2003 on behalf of her client, Alfred Lee. On December 18, 2003, respondent | ^appeared in the Baton Rouge City Court on behalf of Mr. Lee. Respondent also failed to cooperate with the ODC in its investigation of the complaints filed against her in this matter.

Count XXIX — The Davis Matter

Charles L. Davis, Jr. paid respondent $7,500 to represent him in a divorce, and $14,000 to handle a community property settlement. Mr. Davis alleges the divorce took longer than necessary to obtain, and after two years nothing was done with respect to the community property settlement. Despite numerous attempts, Mr. Davis was unable to communicate with respondent. Furthermore, Mr. Davis was never advised of respondent’s 2004 interim suspension, or of the fact that she could no longer represent him. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Davis.

Count XXX — The Rambo Matter

Following her divorce, Juanita Quarles Rambo was sued by her former husband, who alleged that Ms. Rambo had made misrepresentations in documents in which he relinquished his status as beneficiary of Ms. Rambo’s retirement benefits. In June 2001, Ms. Rambo paid respondent $7,500 towards a $15,000 fee to defend her in the lawsuit. Between 2001 and 2002, Ms. Rambo received correspondence from respondent, but she did not receive any pleadings, and no court appearances were scheduled. In October 2003, respondent requested and Ms. Rambo paid an additional $2,500. Ms. Rambo heard nothing further from respondent. In February 2004, respondent left a message with Ms. Rambo’s son that she was ill and that another attorney would complete the matter. No further contact was made by | ^respondent or other counsel. In January 2005, Ms. Rambo sent a letter of termination and a request for refund of fees to respondent, but the mailing was returned as “undeliverable.” Ms. Rambo received no services for the $10,000 fee she paid, and she is unaware of the status of her case. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Rambo.

Count XXXI — The Rogers Matter

Roberta Rogers paid respondent $1,500 towards a $2,500 fee to handle a child custody and visitation matter. To Ms. Rogers’ knowledge, respondent performed no work on her behalf, and she did not receive a refund of the fee she paid. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Rogers.

The ODC alleges that respondent’s misconduct in 05-DB-081 violated the following provisions of the Rules of Professional Conduct: Rules 1.1, 1.2 (scope of the representation), 1.3, 1.4, 1.5(f)(5) (failure to refund an unearned fee), 1.7 (conflict of interest), 1.16(d), 3.2 (failure to make reasonable efforts to expedite litigation), 5.5(a) (engaging in the unauthorized practice of law), 8.1(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

HEARING COMMITTEE REPORTS

02-DB-058

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee determined that respondent’s misconduct was knowing and intentional, and that she caused actual 117injury to her clients, particularly by failing to refund unearned fees. The committee recommended that respondent be suspended from the practice of law for eighteen months.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation in 02-DB-058.

02-DB-119

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. In light of the aggravating factors present, and given the absence of mitigating circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation in 02-DB-119.

05-DB-081

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee determined that respondent engaged in a consistent and alarming pattern of accepting legal fees and then abandoning her clients, causing undue delay and seriously jeopardizing her clients’ legal matters. Respondent failed to properly account for or refund thousands of dollars in unearned legal fees, and has deprived her clients of the funds rightfully owed them. She also violated the terms of a prior disciplinary order by practicing law | iswhile on disability inactive status and failed to cooperate with the ODC in its investigation of the numerous complaints against her. The committee found that the totality of respondent’s misconduct was so egregious that it warranted the sanction of disbarment, with restitution of all unearned fees, and payment of all costs of the proceedings.

The ODC filed an objection to the hearing committee’s recommendation, urging that permanent disbarment is appropriate.

DISCIPLINARY BOARD RECOMMENDATION

02-DB-058, 02-DB-119 & 05-DB-081

The disciplinary board agreed that the records of these matters support a finding that respondent violated the Rules of Professional Conduct as charged in the formal charges. The board found that respondent violated duties owed to her clients, the public, the legal system, and the legal profession; given the pattern and magnitude of her conduct, respondent’s actions can only be described as intentional. By abandoning her practice, neglecting her clients, failing to return unearned fees, and engaging in the unauthorized practice of law, the board found respondent’s actions caused, and had the potential to further cause, serious injury to her clients and the legal profession. The board also recognized that the disciplinary system has been harmed by respondent’s lack of cooperation in the investigative process, as additional expenses were incurred and the agency’s limited resources depleted when the ODC had to repeatedly request that she respond to complaints and other requests for information.

|1flThe board found the following aggravating factors are present: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1984), and indifference to making restitution. No mitigating factors were found by the board.

As a sanction for respondent’s misconduct, the board recommended that the court impose permanent disbarment. Guideline 1 of the permanent disbarment guidelines states that permanent disbarment may be warranted when an attorney engages in repeated or multiple instances of intentional conversion of client funds. Here, respondent has taken on the representation of numerous clients and accepted their money as fees, only to neglect their cases and fail to account to the clients or return their unearned fees. Such conduct constitutes conversion for the purposes of Guideline 1. See In re: Deshotels, 03-2060 (La.12/12/03), 863 So.2d 507 (“... [Respondent’s failure to account for and refund unearned fees paid by his clients resulted in a conversion of those funds to the detriment of his clients. Therefore, we find respondent’s conduct falls within the scope of this guideline.”).

In sum, the board concluded:

In the consolidated matter at bar, the Respondent has neglected the cases of no less than thirty-nine clients and has taken but failed to account for and/or return ^approximately $164,945.00 in fees. Her actions can be described as nothing less than intentional conversion, resulting in great harm to her clients. Following Guideline 1 and the Court’s direction in Deshotels, the Board recommends that the Respondent be permanently disbarred from the practice of law.

Based on this reasoning, the board recommended that respondent be permanently disbarred, that she be ordered to provide an accounting and/or make appropriate 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 fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record of this deemed admitted proceeding supports the factual findings of the hearing committees, as modified by the disciplinary board. The record reveals that respondent violated multiple Rules of Professional Conduct by failing to act with reasonable diligence and promptness in representing her clients, failing to communicate with her clients, failing to comply with her obligations upon the 1 ⅞1 termination of her representation, failing to make reasonable efforts to expedite litigation, failing to provide competent representation, failing to return unearned fees, engaging in conduct prejudicial to the administration of justice, engaging in a conflict of interest, engaging in the unauthorized practice of law, and failing to cooperate with the investigation of disciplinary matters.

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).

The record demonstrates that respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system, and the profession, causing serious harm. Several significant aggravating factors are present in the instant case, including respondent’s refusal to acknowledge the wrongful nature of her conduct, the vulnerability of her victims, and her utter indifference to making restitution, including repaying unearned fees. We are unable to discern any mitigating factors from the record.

Unquestionably, the appropriate sanction for respondent’s misconduct is disbarment. The sole remaining question is whether respondent’s misconduct is so egregious that she should be permanently precluded from seeking readmission to the practice of law.

| ⅞⅛ Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment. In re Frank, 06-0727 (La.10/17/06), 942 So.2d 1050.

Guideline 1 applies to “repeated or multiple instances of intentional conversion of client funds with substantial harm.” Respondent’s conduct clearly falls within the scope of that guideline. The voluminous record of this proceeding demonstrates respondent has engaged in a pattern of collecting fees from at least thirty-nine clients without performing any work and without refunding the unearned fees, essentially converting the fees to her own use. The aggregate amount of the converted fees is nearly $165,000.

We do not lightly impose the sanction of permanent disbarment. In re Shortess, 06-1580 (La.1/17/07), 950 So.2d 570; In re: Gros, 03-3076 (La.4/23/04), 871 So.2d 1091; In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in onr constitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent has used her law license as a pretext to steal money from the citizens of this state. Her actions convincingly demonstrate that she does not possess the requisite moral fitness to practice law in this state. She must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that the name of Jo Fleming a/k/a Jo Anne Fleming, Louisiana Bar Roll number 8393, be stricken from 1 j,3the 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. Respondent is ordered to furnish complete accountings and full restitution to all persons subject of the formal charges. 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.

      . It does not appear from the record that Mr. Fleming is related to respondent.

      . Following the hearing, this court found that respondent’s claim of inability to defend was invalid. Accordingly, on March 24, 2004, respondent was reinstated to active status from interim disability inactive status. In re:

        Fleming, 03-3103 (La.3/24/04), 869 So.2d 785.

      . In 1997, respondent was admonished by the disciplinary board for failing to promptly refund advanced costs paid by her clients in a succession matter.

      . While the board agreed that respondent engaged in the unauthorized practice of law during the time she was on interim disability inactive status (see Count XXVIII of 05-DB-081), the bbard correctly declined to consider this conduct as a basis to recommend permanent disbarment. See In re: Pitre, 05-0853 (La.6/17/05), 903 So.2d 1130 (holding that Guideline 8 of the permanent disbarment guidelines did not apply to an attorney who practiced law while ineligible to do so, because he was not suspended or disbarred, nor had he resigned from the bar, as required by the guideline).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Benyale DAVIS.
    No. 2007-KO-1208.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   PER CURIAM.

Granted. Although the trial court sought to conform defendant’s sentence to the requirements of La.R.S. 15:529.1(G) by amending the sentence originally imposed to deny eligibility for probation or suspension of sentence on the entire term of imprisonment, the court went too far when it also eliminated parole eligibility on the entire term of imprisonment. La.R.S. 15:529.1(G) does not purport to restrict parole eligibility on any habitual offender sentence, and the underlying offense of conviction, possession of cocaine with intent to distribute, subjects the offender to a sentence imposed without benefit of suspension of sentence, probation, and parole, only on the mandatory minimum term of imprisonment of two years at hard labor. La.R.S. 40:967(B)(4)(b). Accordingly, defendant’s sentence is amended to provide that he serve 30 years imprisonment at hard labor without benefit of probation or suspension of sentence, and without benefit of parole on the first two years of the sentence. In all other respects, the application is denied.


text:
    In re Mayer FINKELSTEIN.
    No. 2007-B-2434.
    Supreme Court of Louisiana.
    Dec. 19, 2007.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Mayer Finkelstein, and the Office of Disciplinary Counsel,

IT IS ORDERED that Mayer Finkel-stein, Louisiana Bar Roll number 5570, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

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

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    Donald Ray THOMAS v. Lawrence L. ORLANDO, IV, Charles M. Taylor and Metropolitan Group Property & Casualty Insurance Company Ann G. Serpas v. Lawrence L. Orlando, IV, Charles M. Taylor and Metropolitan Group Property & Casualty Insurance Company.
    No. 2007-CC-2391.
    Supreme Court of Louisiana.
    Dec. 19, 2007.
   In re Orlando, Lawrence L. IV et al.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, Nos. 2005-12091, 2005-12375; to the Court of Appeal, First Circuit, No. 2007 CW 1617.

Stay denied; Writ denied.


text:
    STATE of Louisiana v. Gary LESTER.
    No. 2007-KP-2275.
    Supreme Court of Louisiana.
    Dec. 20, 2007.
   In re Lester, Gary; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 06-4535; to the Court of Appeal, Fifth Circuit, No. 07-K-736.

Denied.


author: CARTER, C.J.

text:
    CITY OF BATON ROUGE Parish of East Baton Rouge v. STATE of Louisiana, Through the Louisiana DEPARTMENT OF SOCIAL SERVICES, and the Governor’s Office of Homeland Security and Emergency Preparedness.
    No. 2007 CA 0005.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.

      E. Wade Shows, Gwendolyn K. Brown, Ashley W. Beck, Baton Rouge, Counsel for Plaintiff/Appellant, City of Baton Rouge/Parish of East Baton Rouge.
    Charles C. Foti, Jr., Attorney General, Urna M. Subramanian, Cherie Lato, Myers 0. Namie, Assistant Attorney Generals, Baton Rouge, Counsel for Defendants/Ap-pellees, State of Louisiana through the Department of Social Services and the Governor’s Office of Homeland Security and Emergency Preparedness.
    Before: CARTER, C.J., PETTIGREW and WELCH, JJ.
   CARTER, C.J.

li>The City of Baton Rouge/Parish of East Baton Rouge (“City/Parish”) appeals a trial court judgment dismissing its petition for declaratory judgment and injunc-tive relief. The City/Parish sought to enjoin the State of Louisiana (“State”) from proceeding with its plan to house registered sexual offenders at the Joint Emergency Services Training Center (JESTC) in East Baton Rouge Parish in the event of a declared state of emergency. For the reasons that follow, we affirm the judgment in part, vacate in part, and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Act 285 of the 2006 regular legislative session went into effect on August 15, 2006. The Act was the legislature’s effort to address problems relative to the housing of registered sexual offenders in the event of a declared state of emergency, such as those following Hurricanes Katrina and Rita. The stated purpose of the Act was to “amend and reenact R.S. 15:545(A) and to enact 29:726(E)(14)(e), (d), (e), and (f) ... to prohibit registered sexual offenders from being housed with other evacuees during a declared state of emergency or after a declared state of emergency.” More particularly, LSA-R.S. 29:726 now provides that a “registered sexual offender shall not knowingly be housed or sheltered in the same area with other evacuees” and that the “offender, if possible, shall be provided shelter or housing in an alternative shelter separate and apart from the general population of evacuees.” LSA-R.S. 29:726 E(14)(c).

Following passage of the Act, the Governor’s Office of Homeland Security and Emergency Preparedness (“Governor’s office”) together with the Department of Social Services concluded that the JESTC site, located on state-owned land in East Baton Rouge Parish, would be the designated shelter site for registered sexual offenders in the event of a declared state of emergency. The JESTC site |sencompasses a sizable amount of property in Zachary, Louisiana, and is under the operation and control of the Louisiana State Police. In the event the JESTC site is utilized as a shelter for registered sexual offenders, it would potentially house approximately 238 individuals.

Dissatisfied with the State’s designation of the JESTC site as the location for the proposed shelter, the Metropolitan Council of East Baton Rouge Parish passed a resolution in October 2006 amending the Code of Ordinances of the City of Baton Rouge and the Parish of East Baton Rouge to add Ordinance 15:8. Ordinance 15:8 prohibits any person from locating or operating “an emergency facility dedicated exclusively for the housing or sheltering of registered sexual offenders during a declaration of emergency in East Baton Rouge Parish.”

Following the passage of Ordinance 15:8, officials from the Governor’s office met with Mayor-President Melvin L. “Kip” Holden, Metropolitan Councilman Wayne Carter, and other City/Parish officials. According to the City/Parish, “the Governor’s office agreed to gather more information and report back regarding how the State [had] selected the JESTC site as the designated shelter for registered sex offenders.” Several days later, the Governor’s office informed the City/Parish that it was standing by its decision to use the JESTC site as a shelter for registered sexual offenders in the event of a declared state of emergency.

In response, the City/Parish filed a “Petition for Declaratory Judgment and for Injunctive Relief’ against the State, through the Governor’s Office and through the Department of Social Services. Therein, it sought: (1) a declaratory judgment stating that the JESTC site is in the same “area” as the other housing for evacuees, and thus, its designation as a shelter for registered sexual offenders constituted a violation of Act 285; (2) a declaratory judgment stating that the State’s designation |4of the JESTC site for registered sexual offenders further constitutes a violation of Ordinance 15:8; and (3) the issuance of a preliminary and permanent injunction to enjoin the State from housing registered sexual offenders at the JESTC site or “from taking steps in furtherance of that end.”

Attached to the petition was an order requesting that defendants show cause why the plaintiffs request for a preliminary injunction should not be granted. On October 24, 2006, the trial court signed the order setting the matter for hearing on November 8, 2006, presumably to comport with the temporal requirements set forth in LSA-C.C.P. art. 3602.

The record reflects that upon the commencement of the November 8 hearing, the following exchange took place between the parties and the court:

City/Parish Attorney: We have agreed to a stipulation as to the authenticity and admissibility of certain maps ... to assist the Court in the presentation of the case. Likewise, we have — and just so we can get the record straight, I had appreciated that the matter before the Court today was a hearing on the entire matter, the declaratory judgment, permanent injunction, and that was my understanding. Since that time, I understand that the State is not willing to move forward in that regard, but merely wants to have this in terms of a hearing on a preliminary injunction.
State’s Attorney: That’s correct, Your Honor. The plaintiffs [sic] in their [sic] petition request a 3602 hearing, a preliminary injunction hearing. It was our understanding to set this as soon as possible to have that summary proceeding.
The Court: Well, gentlemen, let me state for the record, also, my position is that I believe in the earlier discussions, we indicated that this matter would all be heard at the same time. I had a telephone conversation with the lawyers a couple of days ago, and at that time I started to say we agreed, but I agreed and decided that we were just going to have a preliminary injunction today. And I indicated that to the attorneys during that telephone conversation. I also suggested to the attorneys that they pare down their witness list that had been furnished to the Court. And it is my understanding that that has been done....

|sThus, the scope of the hearing was limited to the City/Parish’s request for a preliminary injunction.

At the conclusion of the hearing, the trial court indicated that it would take the matter under advisement. After issuing written reasons, the trial court signed a judgment on November 30, 2006, that provided, in pertinent part, as follows:.

This matter came on pursuant to regular assignment on the '8th day of November, [sic] 2006 on a hearing for Preliminary Injunction filed by the City of Baton Rouge, Parish of East Baton Rouge.
After hearing testimony and reviewing the pleadings, the record and memo-randa of all parties and considering the law and evidence to be in favor of defendant State of Louisiana through the Louisiana Department of Social Services and the Governor’s Office of Homeland Security and Emergency Preparedness,
IT IS ORDERED, ADJUDGED AND DECREED that the petition of the City of Baton Rouge and Parish of East Baton Rouge for declaratory judgment and permanent injunction is dismissed with prejudice, and the petitioner’s request for costs and attorney fees is denied all at the- cost of the petitioner City of Baton Rouge, Parish of East Baton Rouge.

From this judgment, the City/Parish appeals, asserting that the trial court erred in denying its request for a preliminary injunction and in dismissing its demand for a declaratory judgment and permanent in-junctive relief. We now address each of these arguments in turn.

J^LAW AND DISCUSSION

I. Preliminary Injunction

As an initial matter, we note that the judgment at issue herein fails to specifically address the City/Parish’s request for a preliminary injunction. Generally, when a judgment is silent as to any part of a demand or any issue that was litigated, that issue or demand is deemed rejected. Best Fishing, Inc. v. Rancatore, 96-2254 (La.App. 1 Cir. 12/29/97), 706 So.2d 161, 163. Thus, it must be presumed that the trial court denied the City/Parish’s request for a preliminary injunction. See Barham & Arceneaux v. Kozak, 02-2325 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, 241, writ denied, 04-0930 (La.6/4/04), 876 So.2d 87. On appeal, the City/Parish contends that the trial court erred in so ruling.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury, loss, or damage if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. Sorrento Companies, Inc. v. Honeywell Int’l, Inc., 04-1884 (La.App. 1 Cir. 9/23/05), 916 So.2d 1156, 1163, writ denied, 05-2326 (La.3/17/06), 925 So.2d 541. A showing of irreparable harm is not required in cases where the conduct sought to be restrained is unlawful, as when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law. See Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597, 599. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and will not be disturbed on review unless a clear abuse of discretion has been shown. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 663.

|7A. Alleged Unlawful Conduct

The City/Parish maintains that an application of the controlling principles of law to the facts adduced at the hearing establishes its entitlement to a preliminary injunction. It maintains that because the conduct that it seeks to enjoin is unlawful, it is relieved from demonstrating irreparable harm. (Although, it maintains that it made a prima facie showing of irreparable harm nonetheless.) Specifically, the City/Parish contends that the State’s designation of the JESTC site, as a shelter for registered sexual offenders, violates LSA-R.S. 29:726 and Ordinance 15:8.

Violation ofLSA-R.S. 29:726

As of November 2006, there were approximately one thousand four hundred evacuees still living in the Renaissance Village Federal Emergency Management Agency group site, which is located approximately 6.5 driving miles from the JESTC site. Miracle Place Church, which housed approximately 3,500 evacuees following Hurricanes Katrina and Rita, is located approximately 7.9 miles driving distance from the site and Bethany World Prayer Center, which housed around 1,700 evacuees, is located approximately 10.6 miles driving distance from the JESTC site.

The City/Parish contends that the proximity of the JESTC site to the Renaissance Village group site and other housing for evacuees renders it within the same “area” as that term is contemplated by LSA-R.S. 29:726 E(14)(c); therefore, its designation and use as a shelter for registered sexual offenders is a violation of that statute’s provisions. The State counters that the term “area” cannot be interpreted as broadly as the City/Parish proposes.

|sThe interpretation of a law begins with the language of the statute itself. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10. When the words of a law are ambiguous, their meaning must be sought by ex-a,mining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12. Moreover, laws on the same subject matter must be interpreted in reference to each other. LSA-C.C. art. 13. With these precepts in mind, we examine the pertinent language found in LSA-R.S. 29:726 E, which provides, in part, as follows:

(14) (c) Notwithstanding the provisions of R.S. 15:542 to the contrary and notwithstanding any other provision of law to the contrary, a proposed shelter component in the homeland security and state emergency operations plan effective during a declared state of emergency shall include the following requirements:
(i) That a registered sexual offender shall not knowingly be housed or sheltered in the same area with other evacuees.
(ii) That a registered sexual offender, if possible, shall be provided shelter or housing in an alternative shelter separate and apart from the general population of evacuees.
(d) Notwithstanding the provisions of R.S. 15:542 or any other provision of law to the contrary, a proposed shelter component in the homeland security and state emergency operations plan shall include after the termination of the declared state of emergency, the following requirements:
(i) That a registered sexual offender shall not knowingly be housed or sheltered in shelters, hotels, Federal Emergency Management Agency trailer parks, or any other housing funded by the Federal Emergency Management Agency where the general population of evacuees is staying.
(ii) That a registered sexual offender shall be provided shelter or housing in an alternative location separate and apart from the shelters, hotels, or Federal Emergency Management Agency trailer parks or any other housing funded by the Federal Emergency Management Agency where the general population of evacuees are staying.
|3(e) During and after termination of a declared state of emergency, any person, official, or personnel of a federal or state charitable organization or institution who becomes aware of the fact that there is a registered sex offender being housed in any shelter facility shall be required to notify and disclose to the sheriff of the parish and the chief of police of the municipality the identity of any registered sex offender housed, even in a separate area, in the shelter facility.

(Emphasis supplied.)

The State contends that the plain language of the statute can only lead to the following conclusions: pursuant to LSA-R.S. 29:726 E(14)(c)(i), registered sexual offenders cannot be housed or sheltered in the same area of a particular shelter occupied by the general population of evacuees; and, LSA-R.S. 29:726 E(14)(c)(ii) further requires that, when feasible, registered sexual offenders should be housed in a separate shelter altogether. We agree.

To credit the City/Parish’s contention that the location of the JESTC site places registered sexual offenders within the same “area” as other evacuees, would require us to interpret the term “area” to include an expanse of territory encompassing an approximately seven-mile radius of the JESTC site so as to include several distinct shelters located within that radius. Given the language of the statute, we decline to interpret the term “area” so broadly. Rather, we find that the pertinent language of the statute, construed as a whole, indicates the legislature’s intent to physically separate registered sexual offenders from other evacuees either within a single shelter or, preferably, by housing them in a distinctly separate shelter altogether. Accordingly, we cannot say the State’s designation and proposed use of the JESTC site to house registered sexual offenders would result in the housing of these individuals within the same area as the general population of evacuees.

Alternatively, the City/Parish claims that the State’s designation of the JESTC site nevertheless violates LSA-R.S. 29:726 because subsections C through |inE require the State to cooperate with local officials in addressing such issues. The City/Parish contends that the State failed to comply with its duty to cooperate. After a thorough review of the record, we discern no such violation.

The record indicates that the East Baton Rouge Parish Office of Homeland Security and Emergency Preparedness was notified of the selection of the JESTC site prior to its finalization. Moreover, officials from the Governor’s office met with local officials to address their concerns regarding the JESTC site. The fact that after the meeting the State ultimately decided to stand by its decision to shelter registered sexual offenders at the JESTC site does not equate with a failure to cooperate. Accordingly, we conclude that the City/Parish failed to demonstrate that the State’s designation of the JESTC site constitutes a violation of LSA-R.S. 29:726.

Violation of Ordinance 15:8

The City/Parish next asserts that, by virtue of its home rule charter, it was clearly within the scope of its authority in enacting Ordinance 15:8, which prohibits any person from locating or operating “an emergency facility dedicated exclusively for the housing or sheltering of registered sexual offenders during a declaration of emergency in East Baton Rouge Parish.”

The City/Parish claims that the State’s designation of the JESTC site as a shelter for registered sexual offenders is a clear violation of this ordinance. The State maintains that Ordinance 15:8 is unlawful because it conflicts with LSA-R.S. 29:726 and constitutes an abridgment of the State’s police power.

Article VI, section 4, of the Louisiana Constitution of 1974 allows a pre-exist-ing home rule charter municipality, as is the Baton Rouge City/Parish, the power to initiate legislation so long as the ordinance is not inconsistent with the constitution and is not an abridgment of the police power of the State. Daiquiri Cafe Sherwood, Inc. v. Parish of East Baton Rouge, 00-1745 (La.App. 1 Cir. 11/09/01), 818 So.2d 1, 3.

Although the police power of the state is best defined on a case-by-case basis, it has been generally described as the State’s “inherent power to govern persons and things, within constitutional limits, for promotion of general health, safety, welfare, and morals.” City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748, 757. The police power extends only to measures that are reasonable. A measure taken under the state’s police power is reasonable when the action is, under all the circumstances, reasonably necessary and designed to accomplish a purpose properly falling within the scope of the police power. Id. Thus, to sustain an action under the state’s police power, courts must be able to see that its operation tends in some degree to prevent an offense or evil or otherwise to preserve public health, safety, welfare or morals. Id. A litigant claiming that a local ordinance abrogates the state’s police power must show that the local ordinance conflicts with an act of the state legislature that is necessary to protect a vital interest of the state. City of Baton Rouge v. Williams, 95-0308 (La.10/16/95), 661 So.2d 445, 450.

It is exceedingly clear that the enactment of LSA-R.S. 29:726 E(14), as well as the State’s designation of the JESTC site as an emergency shelter for registered sexual offenders, were acts performed in the interest of the public as a whole and constitute a valid exercise of the State’s police power. The preservation of the lives and property of the people of this State in the event of an emergency or disaster as well as the protection of the public from sexual offenders have both been expressly recognized as vital State interests. LSA-R.S. 15:540 A; LSA-R.S. 29:722 A.

112Artide XII, section 11, of the Louisiana Constitution of 1974 requires that the legislature “provide for orderly and temporary continuity of state government, in periods of emergency, until normal processes of government can be reestablished in accordance with the constitution and laws of the state.” In the Louisiana Homeland Security and Emergency Assistance and Disaster Act (LHSEADA), the legislature has delegated to the Governor the responsibility “for meeting the dangers to the state and people presented by emergencies or disasters.” In meeting this responsibility, the Governor may issue executive orders, proclamations, and regulations having the force and effect of law. LSA-R.S. 29:724 A. The Governor is further charged with the preparation and maintenance of a homeland security and State emergency operations plan and the promulgation of standards and requirements for local and interjurisdictional disaster plans. LSA-R.S. 29:726 B and E(3).

Pursuant to LSA-R.S. 29:726 E(14)(a), the Governor’s office must include a proposed shelter component within its homeland security and emergency preparedness plan, including a provision to ensure that registered sexual offenders are physically separated from the general population of evacuees. Notably, the powers bestowed upon parish presidents and parish homeland security and emergency preparedness agencies by the LHSEADA do not include the authority to provide for the availability and use of temporary emergency housing. See LSA-R.S. 29:727 F; LSA-R.S. 29:729 E. More importantly, the City/Parish’s home rule charter does not expressly grant it the exclusive authority to regulate the housing of evacuees during a state of emergency.

| ^Furthermore, we find Ordinance 15:8 to be in conflict with LSA-R.S. 29:726. As noted above, LSA-R.S. 29:726 E(14)(c) requires that registered sexual offenders be physically separated and housed apart from the general population of evacuees. When possible, the statute commands that they be sheltered in a distinctly separate shelter.

The express language of Ordinance 15:8 proscribes the operation of “an emergency facility dedicated exclusively for the housing or sheltering of registered sexual offenders during a declaration of emergency in the East Baton Rouge Parish.” (Emphasis supplied.) “Exclusively” is defined in Black’s Law Dictionary, 565 (6th ed.1990) as “[a]part from all others; only; solely.. .[t]o the exclusion of all others .... ” Black’s Law Dictionary, 564 (6th ed.1990) further defines “exclusive” as “[a]ppertaining to the subject alone, not including, admitting, or pertaining to any others.”

Despite the City/Parish’s arguments to the contrary, the language of its ordinance in no way prevents the State from housing any or all registered sexual offenders at the JESTC site in the event of an emergency; it merely mandates that other evacuees be sheltered there as well. This would result in the housing of registered sexual offenders in the same area as other evacuees, the very scenario the legislature sought to eliminate.

Considering the highly personal nature of habitation combined with the lack of typical boundaries, evacuees sharing the confines of a shelter are at particular risk from the close, physical proximity of sexual offenders. The legislature has recognized the increased risk arising from such circumstances and, therefore, requires that sexual offenders report their presence at any emergency shelter to the management in addition to registering with local law enforcement authorities. LSA-R.S. 15:542 A(2)(a) and C(2); LSA-R.S. 15:543.1. Moreover, the legislature, luby enacting laws prohibiting sexual offenders from coming within certain distances of schools, daycares, and playgrounds, has recognized the need to impose some degree of physical separation between sexual offenders and potential victims.

Thus, we conclude that the State’s interest in protecting innocent evacuees from registered sexual offenders during a time of emergency cannot be effectuated through means other than the physical separation mandated by LSA-R.S. 29:726 and realized in the State’s designation of the JESTC site. Accordingly, we find no violation of law by the State’s designation and/or use of the JESTC site as a shelter for registered sexual offenders during a declared state of emergency.

B. Irreparable Harm

Alternatively, the City/Parish argues that the evidence presented at the hearing establishes that the citizens and agencies of East Baton Rouge Parish will suffer irreparable injury if “the State persists in its goal of housing or sheltering registered sex offenders [at the JESTC site] in the event of ... [an] emergency.” However, after a thorough review of the record, we cannot say that the trial court was manifestly erroneous in determining that the City/Parish had failed to make a prima facie showing of irreparable injury thereby entitling it to a preliminary injunction.

Firstly, the City/Parish seeks to enjoin the State from preparing the JESTC site in anticipation of its use as a shelter in the event of a declared emergency. However, it presented no evidence demonstrating how the State’s site work, such as the erection of tents, is causing it to suffer any injury.

11fiSecondly, the City/Parish maintains that the State’s actual utilization of the JESTC site would be unduly burdensome on it given the fact that local law enforcement would have the duty of monitoring the off-site activities of the sexual offenders housed there. However, regardless of whether registered sexual offenders choose to be sheltered at the JESTC site, we note that they are not incarcerated or in the custody of the State and thus are free to go into almost any area in East Baton Rouge Parish that they desire. It is the duty of local law enforcement to enforce the law within their jurisdictions. This duty would exist even if the State had not designated the JESTC site but, instead, registered sexual offenders chose to frequent the vicinity of their own accord. Accordingly, we cannot say the trial court was manifestly erroneous in concluding that the City/Parish failed to make the required showing of irreparable harm attributable to the use of the JESTC site as an emergency shelter for sexual offenders. Finding no abuse of discretion, we hereby affirm the trial court’s judgment insofar as it denies the City/Parish’s request for a preliminary injunction.

II. Dismissal of Claims for Declaratory Judgment and Permanent Injunction

Notwithstanding its entitlement, or lack thereof, to a preliminary injunction, the City/Parish asserts that the trial court erred in dismissing its petition for “declaratory judgment and permanent injunction” following a hearing that pertained solely to its request for a preliminary injunction. We find merit in this assignment of error.

Designed to preserve the status quo between the parties pending a determination on the merits, a preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent | ^injunctive relief. Bally’s Louisiana, Inc. v. Louisiana Gaming Control Bd., 99-2617 (La.App. 1 Cir. 1/81/01), 807 So.2d 257, 263, writ denied, 01-0510 (La.1/11/02), 807 So.2d 225. The principal demand for a permanent injunction, as opposed to the preliminary injunction, is determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the preliminary injunction may touch upon or decide issues regarding the merits. Only when the parties have expressly agreed to submit the case for a final decision at the hearing on the rule for a preliminary injunction, may the ruling on the preliminary injunction definitively dispose of the merits of the case. Bally’s, 807 So.2d at 263. An express agreement by the parties to consolidate the preliminary and permanent injunctions is essential; a trial court is without the authority to unilaterally convert a hearing for a preliminary injunction into a judgment of permanent injunction. See McCurley v. Burton, 03-1001 (La.App. 1 Cir. 4/21/04), 879 So.2d 186, 188-189; see also Bally’s, 807 So.2d at 262-63.

The record in the present matter reveals no express agreement between the City/Parish and the State to submit the case for a final decision on the City/Parish’s request for a permanent injunction. On the contrary, the colloquy that occurred at the beginning of the hearing demonstrates that the only issue before the court was the City/Parish’s request for a preliminary injunction. Accordingly, it was error for the trial court to dismiss the City/Parish’s request for a permanent injunction, the merits of which can only be determined following a full trial under ordinary process.

| ^Additionally, the City/Parish’s demand for a declaratory judgment is a corollary of its request for a permanent injunction. See Department of Health and Hospitals v. Teachers’ Retirement System of Louisiana, 95-1034 (La.App. 1 Cir. 12/15/95), 665 So.2d 748, 751. Like a demand for permanent injunctive relief, a suit for a declaratory judgment is an ordinary action, not a summary proceeding. In re Melancon, 05-1702 (La.7/10/06), 935 So.2d 661, 665. Thus, the trial court also erred in dismissing the City/Parish’s demand for a declaratory judgment. Accordingly, we vacate the trial court’s judgment insofar as it dismisses the City/Parish’s petition for “declaratory judgment and permanent injunction,” and we remand this matter for further proceedings consistent with the opinions expressed herein.

CONCLUSION

For all of the foregoing reasons, the judgment denying the City/Parish’s request for a preliminary injunction is affirmed. In all other respects, the judgment is vacated, and this matter is remanded to the trial court for further proceedings. Costs of this appeal in the amount of $899.36 are to be shared equally by the parties.

JUDGMENT AFFIRMED IN PART; VACATED IN PART; REMANDED.

      . Louisiana Code of Civil Procedure article 3602 states in part: "An application for a preliminary injunction shall be assigned for hearing not less than two nor more than ten days after service of the notice.”

      . The written reasons, dated November 16, 2006, concluded with the following language:
      This court finds as a matter of law that the petition for declaratory judgment praying that the JESTC site as the shelter for unique populations is in violation of Act 285 of 2006 is denied. This court finds as a matter of law the petition for declaratory judgment stating that the State’s designation of the JESTC site as the shelter for unique populations to be in violation of Ordinance 15:8 is hereby denied. This court finds as a matter of law that the State be permanently enjoined from housing registered sexual offenders at the JESTC site in the event of a declared state of emergency is denied. The court also denies the petitioner’s request for costs and attorney fees and hereby dismisses plaintiff's petition with prejudice and at its cost.

      . An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction. LSA-C.C.P. art. 3612 B.

      . A preliminary injunction is only provisional and is not intended as a resolution of the merits of a controverted issue. Levine v. First National Bank of Commerce, 06-0394, 06-0439 (La.12/15/06), 948 So.2d 1051, 1056-57 n. 4.