author: SCHEB, Judge.

text:
    Lisa Lawrence BUSOT, Appellant, v. Florencio Otto BUSOT, Appellee.
    No. 76-13.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1976.

      Michael R. N. McDonnell of Brown, Pel-ham, McDonnell & Hart, Tallahassee, for appellant.
    Archie M. Odom, of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appel-lee.
   SCHEB, Judge.

On grounds of public policy the trial court refused to enforce the support provisions of a separation agreement entered into in 1969 by a husband and wife in Pennsylvania. We reverse.

Appellant is the ex-wife of appellee, these parties having been divorced in Pennsylvania subsequent to the time they entered into the agreement which appellant sought to enforce. Herein we refer to the appellant as the wife and to the appellee as the husband.

The parties were married in Georgia in 1964, and lived in Florida thereafter until the husband graduated from college. Shortly after the husband obtained his college degree, they became residents of Pennsylvania. Two children were born of the marriage. The husband has been a stockbroker for the past several years. Recently his salary was increased to $33,000 per year.

On May 21, 1969, in consequence of their marital difficulties, the husband and wife entered into an Agreement of Separation, Custody and Support. In addition to settling their property rights and vesting custody of their minor children, ages 3 and 4, with the wife, the agreement required the husband to pay $600 per month to the wife for support of herself and the two children. The following day they signed an addendum to provide that the agreement would survive their contemplated divorce. After signing the agreement, they separated. There is a conflict as to just when the actual separation occurred, but the evidence suggests it happened a week or so after the agreement was signed. Prior to their separation, they continued to cohabit and even subsequent to their separation, there were sexual relations between them on a few occasions while they made some attempts at reconciliation. No reconciliation was achieved and, in fact, a divorce was granted in Pennsylvania on December 17, 1969, the decree being silent in respect to the agreement previously signed by the parties.

Eventually, the wife moved to Florida and in 1973, she sued the husband for breach of contract, claiming he was delinquent in making required support payments. The husband set up ten different affirmative defenses. Upon hearing, the trial judge found the agreement to be valid and the husband to be in arrears. The court entered a judgment in the amount of $20,200, plus costs, in favor of the wife on July 17, 1975. A rehearing was granted on December 17, 1975, wherein the court:

“ORDERED AND ADJUDGED that said Motion for Rehearing is well taken for the following reason:
The parties to this action entered into a separation agreement which has given rise to this litigation on May 21,1969. At the time the parties entered into this agreement they were living together as husband and wife. They continued to live together as husband and wife until at least fall of the same year at which time they did in fact separate. There is also evidence of an attempted reconciliation and further separation of the parties. Due to the foregoing circumstances the agreement is void and unenforceable in the State of Florida because it violates the public policy of this State.
The Court further finds that it has jurisdiction of the parties and that the Defendant is obligated to support the minor children of the Plaintiff and the Defendant. It is therefore, ORDERED AND ADJUDGED.
2. The Final Judgment entered by this Court on the 17th day of July, A.D., 1975, be and the same is hereby vacated and that this Amended Judgment shall become the Judgment of the Court in these proceedings.
4. The Court does have jurisdiction of the parties to this cause and their minor children and as a consequence thereof:
A. The Defendant shall pay to the Plaintiff the sum of $300 per month effective November 17, 1973 for the care and support of the minor children of the parties until same reach their majority.”

Thus, the trial judge reasoned that since the separation agreement was entered into while the parties were living together as husband and wife with attempts made at reconciliation subsequent to the agreement, the agreement violated the public policy of this state.

First, we note that there was no plea among the husband’s ten affirmative defenses to the effect that the agreement was void or contrary to public policy for the reasons stated. Of course, if the agreement had been one which was void on its face, the court could have refused to enforce it even though that defense was not pled. Escambia Land & Mfg. Co. v. Ferry Pass Inspectors & Shippers Assoc., 59 Fla. 239, 52 So. 715 (1910). But, where as here, the agreement appears on its face to be valid, the defense of illegality must be alleged and proved. Lee v. Clearwater Growers Assoc., 93 Fla. 214, 111 So. 722 (1927); Robert & Co. v. Mortland, 160 Fla. 125, 33 So.2d 732 (1948); Jorge v. Rosen, 208 So.2d 644 (Fla. 3d DCA 1968). True, there was mention of illegality in one of the husband’s affirmative defenses but it was only directed to the contention that the provisions of the separation agreement encouraged divorce. That defense was properly rejected by the trial court. Any defense relating to the fact that the agreement was unenforceable because the parties were not separated was waived by the husband since it was not pled. B.B.S. v. R.C.B., 252 So.2d 837 (Fla. 2d DCA 1971). The mere mention without objection of the time and circumstances of the separation was insufficient to establish a trial by consent on this issue.

The trial court, in its order on rehearing, also mentions attempts of the parties at reconciliation. The evidence on this point reveals that approximately a week after the agreement was signed, the wife moved from the matrimonial domicile in Scranton, Pennsylvania, to live with her parents in Oil City, Pennsylvania. While there, she was visited by her husband prior to finalization of the divorce proceedings and during these times the parties occupied the same bedroom on some occasions. Admittedly, sexual relations occurred between them. There is a conflict in the testimony as to the last time the parties cohabited, with the wife contending it was in July 1969, and the husband concluding, although somewhat indefinitely, the final break up occurred perhaps a little later than September 1969. Clearly, some attempts were made during this period to prevent the marriage from ending in divorce; however, the husband, who complied with the agreement for an extended period, did not plead reconciliation as one of his affirmative defenses. And, as pointed out above, this resulted in a waiver unless that issue was tried by consent of the parties. During the trial, the wife’s attorney objected to questioning dealing with attempts at reconciliation as being outside the issues. Evidence relevant to attempts at reconciliation was admitted, the trial court apparently having concluded such evidence to be probative on the issue of whether the agreement was executed under emotional strain and duress, as affirmatively pled by the husband. We cannot see how this would constitute a trial of the reconciliation issue by consent, but even if it did, the evidence was insufficient to establish that the parties reconciled their differences and resumed normal marital relations as would necessarily cause an abrogation of the agreement. We are aware of Weeks v. Weeks, 143 Fla. 686, 197 So. 393 (1940), where the court held that a true reconciliation and resumption of marriage relations would abrogate a settlement agreement between spouses. The facts in Weeks showed such a reconciliation. The facts here do not. Obviously, reconciliation requires an intention of the parties to reconcile and this requires more than some occasional post-separation sexual experiences. Cf. Smith v. Smith, 322 So.2d 580 (Fla. 2d DCA 1975).

We hold, therefore, the trial court erred in holding the agreement entered into between these parties was void and unenforceable in the State of Florida. Accordingly, we vacate the amended final judgment entered on December 17, 1975, and reinstate the final judgment entered on July 17,1975. This action is without prejudice to either party seeking modification of the separation thereof upon proper showing before the trial court.

Reversed.

McNULTY, C. J., and GRIMES, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Bob TUFF, Appellant v. STATE of Florida, Appellee.
    No. 76-708.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1976.
    Jack 0. Johnson, Public Defender, Bar-tow, and A. Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was placed on probation for breaking and entering with intent to commit a felony in violation of Section 810.02, Florida Statutes (1973). During the probation period, an affidavit and warrant were issued which accused the appellant of the following:

Violating Condition (B) of the Order of Probation which reads, “Not later than the fifth day of each month, until the defendant’s release, make a full and truthful report to the defendant’s Probation Supervisor on the form provided for the purpose, or as otherwise directed by the supervisor.” to-wit: In that the aforesaid has failed to submit the necessary written monthly reports for the months of October, November, and December, 1975.
Violating Condition (H) of the Order of Probation which reads, “Live and remain at liberty without violating law.” to-wit: In that on 1-13-76, the aforesaid was arrested by Detective H. E. Wareham and J. Lorenz of the Hillsborough County Sheriff’s Department, for the offense of Breaking and Entering an Auto and Resisting Arrest with Violence.

A probation revocation hearing was held. At the hearing, appellant pled guilty to failing to file monthly reports as required by Condition (B). He pled not guilty to the other charge. The only evidence that appellant violated Condition (H) was contained in an unidentified report which gave an account of the arrest incident on which the second probation violation charge was based. The trial judge read the report and recited a summary of its contents at the hearing.

Upon finding the appellant violated both Conditions (B) and (H), the trial judge revoked the appellant’s probation and sentenced him to fifteen years imprisonment.

Appellant contends that it was error for the trial court to revoke the probation on a finding of a violation of Condition (H) because the only evidence introduced on that charge was an unidentified report which was hearsay. We agree. A revocation of probation may not be based solely on hearsay. Brown v. State, 338 So.2d 573 (Fla.2d DCA 1976); Franklin v. State, 226 So.2d 461 (Fla.2d DCA 1969); McNeely v. State, 186 So.2d 520 (Fla.2d DCA 1966).

While it is undisputed that appellant violated the terms of his probation by failing to file monthly reports, we are uncertain whether the trial court would have revoked probation and imposed the sentence it did solely on that ground. Accordingly, the order of revocation is reversed and the cause is remanded to the trial court for further proceedings. Since reversal of an order of revocation of probation, on the ground that it was based solely on hearsay, does not bar a second revocation hearing based on the filing of another affidavit alleging the same violation, Robbins v. State, 318 So.2d 472 (Fla.4th DCA 1975); White v. State, 301 So.2d 464 (Fla.1st DCA 1974); Hampton v. State, 276 So.2d 497 (Fla.3d DCA 1973), this proceeding may include a second hearing on revocation based upon violation of Condition (H). Should the state elect not to file a new affidavit, then the trial judge must determine whether probation should be revoked on the basis of appellant’s admitted violation of Condition (B); and if so, the trial court shall then impose sentence on appellant.

Reversed and remanded.

BOARDMAN, A. C. J., and GRIMES, J., concur.


author: PER CURIAM. RAWLS, Acting Chief Judge

text:
    Milton Daniel WEEKS, Appellant, v. STATE of Florida, Appellee.
    No. Y-521.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1976.
    Carlton P. Maddox and Donald G. Nichols of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   SUBSTITUTED OPINION ON REHEARING

PER CURIAM.

AFFIRMED. Dorsey v. State, 324 So.2d 159 (Fla.App. 1st, 1976); Allen v. State, 330 So.2d 157 (Fla.App. 1st, 1976).

SMITH, J., and SWIGERT, WILLIAM T., Associate Judge, concur.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent.

Appellant Weeks appeals a judgment of conviction of breaking and entering American Legion Post No. 88 with intent to commit grand larceny. Weeks was a member of the Legion Post.

The primary point on appeal is that the trial court erred in denying appellant’s seasonably made motion on the grounds that no evidence had been produced as to the ownership of the property.

Section 811.01, Florida Statutes, provides in part: “Whoever commits larceny by stealing of the property of another . .” Thus, proof of ownership by another is essential to support a conviction upon such charge. State v. Anders, 59 So.2d 776 (Fla.1952). In Haines v. State, 113 So.2d 601 (2 Fla.App.1959), the Second District Court of Appeal stated:

“Rudimentary in Florida law is the principle that in cases charging breaking and entering and those charging grand larceny, allegations of ownership of property are material and substantial matters and must be proved in order to support a conviction upon such charges. Alvarez v. State, 1946, 157 Fla. 254, 25 So.2d 661; State v. Anders, Fla.1952, 59 So.2d 776; and Lopez v. State, 1932, 106 Fla. 361, 143 So. 303. It inevitably follows that the cause should be reversed for a new trial.”

I would reverse for a new trial.

      . Candidly, counsel for the state during oral argument, for all practical purposes, conceded that the state had failed to sufficiently prove this essential element of the offense charged.


author: CALOGERO, Justice. DENNIS, Justice

text:
    LOUISIANA STATE BAR ASSOCIATION v. Henri LORIDANS.
    No. 55433.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Nov. 5, 1976.
    Dissenting Opinion Nov. 17, 1976.

      Henry A. Politz, Chairman, Shreveport (Recused), Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, Counsel, Louisiana State Bar Association, Committee on Professional Responsibility, for plaintiff-petitioner.
    Donald R. Miller, Shreveport, for defendant-respondent.
   CALOGERO, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Henri Loridans, a member of the bar of this State. The Committee’s petition relies upon the authority of section 8 of article 15 of the Articles of Incorporation of the Louisiana State Bar Association, as effective September 1, 1971, and is based upon respondent’s conviction in federal court for mail fraud and conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 371, 1341. This Court has original jurisdiction over these proceedings as provided in section 10 of article 7 of the Louisiana Constitution of 1921.

On April 3, 1967, Henri Loridans, respondent herein, was indicted by the Grand Jury for the United States District Court for the Eastern District of Louisiana. This indictment contained multiple counts, charging respondent and others with mail fraud and conspiracy to commit mail fraud. On December 18, 1970, after a trial lasting almost two months, respondent and a number of his co-defendants were found guilty as charged. He was thereafter sentenced to serve three years imprisonment on each of the four counts for which he was convicted, the sentences to run concurrently. Thereafter the United States Court of Appeal, Fifth Circuit affirmed the judgment of the district court. United States v. Perez et al., 489 F.2d 51 (5th Cir. 1974). Respondent’s application for writs of certiorari was denied by the United States Supreme Court on June 10, 1974. 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974).

On October 11, 1974, a petition for disciplinary action against respondent was filed with this Court. In response to that petition, respondent filed various exceptions to the proceedings, which this Court ordered referred to the merits. Respondent then answered the petition by way of a general denial, affirmatively asserting, however, that he was innocent of the charges for which he stood convicted and giving notice that he intended to produce evidence of extenuating circumstances. On October 14, 1975, a hearing was held before George Arceneaux, Jr., the Commissioner appointed by this Court to conduct the proceedings. Art. of Incorp., La. State Bar Assn., Art. 15, § 8(7)(b) (1971). At the hearing, the Committee introduced into evidence the entire record of the instant proceedings, including the original petition for disciplinary action, certified copies of the Judgment of Commitment of the United States District Court for the Eastern District of Louisiana, and photostatic copies of the opinion of the United States Court of Appeal, Fifth Circuit in the case of United States v. Perez, supra. At this point, respondent requested the introduction of the entire transcript of evidence before the United States District Court and of all motions and pleadings filed in that court subsequent to the conviction. The Commissioners overruled respondent’s motion to introduce this additional material on the basis that under the Articles of Incorporation of the Louisiana State Bar Association, the Committee is only required to introduce “the certificate of the conviction of the respondent.” Respondent objected to the Commissioner’s ruling and proffered the evidence.

At the hearing, respondent testified on his own behalf and presented four character witnesses, as well as Alvin B. Evans, Jr., one of his codefendants in the federal mail fraud-conspiracy case. The Commissioner sustained the committee’s objection to Mr. Evans’ testimony, but nonetheless allowed the witness to testify under an offer of proof. That testimony was essentially to the effect that he had never heard Loridans discuss, or participate in a discussion relative to, the fraudulent aspects of the scheme which formed the basis of the convictions, and that he had overheard several of the principals state that the physicians and attorneys involved had been “fooled.” In addition respondent proffered eleven additional witnesses who would have testified either that they had overheard conversations indicating that respondent did not have knowledge of the fraudulent scheme or would have offered information tending to negate respondent’s guilt. This testimony was objected to by the committee on the grounds that under the provisions of article 15, section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association “respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted . . .”

On March 8, 1976, Commissioner Arcen-eaux filed his report with this Court, in which he concluded that respondent’s conviction for mail fraud and conspiracy to commit mail fraud is final; that the offenses for which he was convicted are serious crimes; that evidence relating to respondent’s lack of knowledge of any fraudulent scheme, although admitted under offer of proof, is not admissible and should be disregarded; and that although the introduction of a certificate of conviction is conclusive evidence of guilt, that the respondent may show that the crime is not one involving misconduct or moral turpitude. Based on these conclusions, as well as an examination of the crime itself, the Commissioner found that “the conduct of respondent warrants discipline” and noted that it is his “reluctant, but firm conviction that [respondent] be disbarred from the practice of law . . . The Committee on Professional Responsibility filed its concurrence to thé report of the Commissioner. The matter was then submitted to this Court for final determination of the appropriate disciplinary action to be taken, if any.

Respondent first contends that it was error for the committee to proceed in the instant case under article 15, section 8 of the Articles of Incorporation of the Louisiana State Bar Association, as amended and effective September 1, 1971, for a crime committed prior to its effective date. Respondent argues that as amended the penalty provisions for disbarment require a mandatory minimum of five years, that such penalty exceeds that in effect prior to the amendment, and that the increased penalty is in the nature of a bill of attainder or an ex post facto law in violation of both the United States and Louisiana Constitutions.

We find no merit to this argument. As we stated in Louisiana State Bar Association v. Ponder, 263 La. 743, 269 So.2d 228 (1972), if an attorney’s conviction became final after the September 1, 1971 effective date, the disciplinary action is properly instituted under the provisions as set forth in the 1971 restated articles of incorporation. Respondent’s conviction became final twenty-five days after the United States Supreme Court denied his application for writ of certiorari. Rule 58 of the Rules of the Supreme Court of the United States; Cutrer v. Humble Oil & Refining Co., 228 F.Supp. 787 (E.D.La.1964), aff’d Stevens v. Humble Oil & Refining Co., 346 F.2d 43 (5th Cir. 1965), cert. denied 382 U.S. 978, 86 S.Ct. 546, 15 L.Ed.2d 468 (1966). See also Louisiana State Bar Association v. Ponder, supra. The United States Supreme Court denied respondent’s writ application on June 10, 1974. Thus respondent’s conviction became final well after the current Articles of Incorporation of the Louisiana State Bar Association became effective and the committee properly proceeded thereunder.

Secondly, respondent contends that the committee erred in not proceeding under article 15, section 8, paragraphs 1 through 6 of the Articles of Incorporation of the Louisiana State Bar Association. The rules applicable when an attorney has been convicted of a crime are set forth in article 15, section 8. Paragraphs 1 through 6 provide that upon learning that an attorney has been convicted of a crime, the committee may secure the appropriate certificate of conviction; that the committee shall then make a determination whether the crime of which the attorney has been convicted is a serious crime; and that after making this determination, the committee shall file a written report with this Court, stating its findings and conclusions. If this Court concurs with an opinion by the committee that the crime is serious, the attorney may be suspended from the practice of law and the committee ordered to institute the necessary disciplinary proceedings. However, these (latter) disciplinary proceedings may not be brought to a hearing until all appeals from the conviction have been exhausted, unless an earlier hearing date is requested by the respondent. Under the provision of paragraph 7, once the conviction has become final, the committee files a petition with this Court seeking disciplinary action; the court appoints a commissioner; and the hearing is conducted. This Court then makes its final determination with respect to disbarment.

In the instant case, the committee did not, prior to the filing of the petition for disciplinary action, and prior to the finality of the conviction, make a preliminary determination that the crime of which respondent was convicted was a serious crime, and did not “file a written report with the Supreme Court, setting forth its findings and conclusions,” based on such a determination. Rather the committee waited until respondent’s conviction was final, before initiating proceedings, and then under article 15, section 8, paragraph 7 of the Articles of Incorporation of the Louisiana State Bar Association.

Viewing the provisions of section 8 of article 15 in their entirety, it is clear that they call for an initial determination by the committee of the seriousness of the crime in the interim period after conviction but before finality of judgment by exhaustion of appeals. Such a preliminary determination allows for the suspension of an attorney during this time and thus affords better protection to the public and the courts. While the current Articles of Incorporation do provide for these preliminary steps, in the instant ease we see no substantial violation of respondent’s rights by the failure of the Committee to take them. If that procedure had been followed, respondent would possibly have been under suspension during the five to six year period between his conviction in federal court and the present determination by this Court with respect to respondent’s disbarment. Instead he continued to practice law. Here the committee did not opt to proceed against respondent prior to the finality of his conviction. For whatever reasons they chose to wait, in our view their decision not to take any preliminary steps to discipline respondent does not give rise to any defense on his part to the initiation of the proceedings after his appeals have been exhausted and his conviction has become final.

In connection with the above argument, we additionally conclude that respondent’s contention that the instant proceeding is barred by the running of a prescriptive period is without merit.

Respondent contends that the prescriptive periods set forth in articles 572 and 578 of the Louisiana Code of Criminal Procedure, which provide limitations on the institution of prosecution and the commencement of trial in criminal cases, should be applied to disciplinary actions based on an attorney’s conviction of a crime and that the periods should run from the date of the alleged misconduct. The Louisiana State Bar Association has not stated in its Articles of Incorporation a specific prescriptive period applicable to the bringing of disciplinary actions, and we are cognizant of no statutory prescriptive period that should be applied in this situation. See Louisiana State Bar Association v. Theard, 222 La. 328, 62 So.2d 501 (1952). Under the current procedures, the preliminary steps are premised upon conviction of a crime and the actual petition and hearing follow finality of the conviction. In the instant case, as previously noted, respondent’s conviction became final twenty-five days after the United States Supreme Court denied his application for writ of certiorari on June 10, 1974. The petition for disciplinary action was filed within four months, on October 11, 1974. Pretermitting the question of what prescriptive period, if any, is applicable to disciplinary proceedings, we conclude that the present action is not barred.

Having thus determined that a hearing was properly held in this matter, we are now confronted with the question of what evidence is admissible at the hearing and thus to be appropriately considered by this Court in the instant case. In this regard, article 15, section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association provides as follows:

“At the hearing based upon the respondent’s conviction of a crime the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.” (Emphasis added)

In addition, article 15, section 8, paragraph 7(c) states that “the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.” These provisions were clearly designed to put an end to an examination of respondent’s guilt or innocence of the crime of which he has already been convicted and to permit only the introduction of mitigating circumstances that are not inconsistent with that guilt.

In the instant case, respondent testified on his own behalf at the hearing and, as he did during his trial, maintained his innocence. In addition, he presented at the hearing the testimony of Alvin B. Evans, Jr., under an offer of proof, and indicated that additional witnesses would also testify that they had reason to believe that respondent had no knowledge of any fraudulent scheme with respect to mail fraud and conspiracy to commit mail fraud, the crimes for which he was found guilty.

One of the essential elements of mail fraud as set forth in 18 U.S.C. § 1341, is a conscious, knowing intent to defraud. United States v. Payne, 474 F.2d 603 (9th Cir. 1973); United States v. Koenig, 388 F.Supp. 670 (S.D.N.Y.1974). In addition, one of the essential elements of the crime of conspiracy to violate a criminal law is knowledge and intent. See United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Garafola, 471 F.2d 291 (6th Cir. 1972); United States v. Koenig, supra. As noted by the United States Court of Appeal, Fifth Circuit, in its opinion affirming respondent’s conviction, United States v. Perez, supra, at 61, 62:

“A review of the record has convinced us that the evidence adduced, both direct and circumstantial was adequate to warrant the inference that all of the participants had entered into this concerted program. To conspire is to agree — the presence of an agreement is the primary requirement for the establishment of a conspiracy, the commission of an overt act in furtherance being attendant.
U* * *
“Here, there was direct, positive testimony, if credited, from which the jury could find that each of the defendants, appellants here, were participants in one overall conspiracy. With hardly any exception, the testimony squared with the common sense of the scheme.”

To permit respondent to offer evidence at his hearing before the Committee on Professional Responsibility tending to show his lack of knowledge and/or intent would be to admit evidence “inconsistent with the essential elements of the crime for which he was convicted . . .In direct conflict with the terms of article 15, section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association. We therefore conclude that the testimony of Alvin D. Evans, Jr., the testimony of respondent, and the proffered testimony of the eleven additional witnesses, insofar as such testimony seeks to negate any knowledge or intent on the part of respondent, was inadmissible at the hearing and will be disregarded by this Court. To hold otherwise would require this Court to retry respondent despite the fact that he was convicted after trial by jury, and despite the fact that his conviction was affirmed on appeal. It would also be in contravention of the specific language of the Articles of Incorporation that “the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.”

The foregoing discussion is not intended to foreclose an inquiry into the facts surrounding the commission of the offense insofar as they reflect upon the character or quality of the criminal conduct or a respondent’s degree of complicity therein. See Louisiana State Bar Association v. Edwards, 322 So.2d 123 (La.1975). It merely indicates that the reference to “mitigating circumstances” does not relate to mitigating circumstances with respect to respondent’s guilt or innocence of the crime, or with respect to the essential elements of that crime, but rather relates to mitigating circumstances which appropriately bear upon “whether the crime warrants discipline, and if so, the extent thereof.” Thus evidence of “mitigating circumstances not inconsistent with the essential elements of the crime” would include the character of the misconduct on which the conviction was based and, in appropriate cases, the degree of respondent’s complicity, as well as evidence relative to the. reputation of respondent, his post-conviction conduct, the regard in which he is held by members of the legal profession and the community in which he resides, family circumstances and the like.

The basic facts surrounding respondent’s conviction for mail fraud and conspiracy to commit mail fraud were set forth by the United States Court of Appeal, Fifth Circuit, in its opinion United States v. Perez, supra, at 55-56, as follows:

“. . . The Louisiana-wide get-rich-quick scheme involved the staging of fraudulent automobile accidents for the purpose of creating false personal injury claims. These claims would be submitted to the insurance carriers for the respective vehicles involved in the wrecks with the aid and contrivance of certain physicians and lawyers.
As the scheme evolved, the participants even coined their own terminology which, though alien to the uninitiated, became known to all those who participated. This glossary of modern day crookedness was quite descriptive. Certain participants were known as “recruiters”. The recruiters’ function, not unnaturally, was to recruit others who assumed titles commensurate with their organizational function. There were the “hitters”, whose function it was to drive the “hitter” vehicle in each collision which supposedly was to be liable for causing the accident. Then there was the “target” vehicles. The occupants of the “target” were known as the “driver” and the “riders”. It was determined at the outset that pregnant women made exceptionally good riders as they could claim pregnancy related injuries which would be both hard to disprove and easily settleable with the insurance carriers. Throughout the scheme there was an effort made on the part of the participants to use vehicles and drivers which were covered by high limits of liability insurance.
According to a pre-arranged timetable, the “hitter” vehicle would strike the “target” vehicle either broadside or in the rear end. The occupants of the “target” vehicle — the driver and riders — and occasionally some of those in the “hitter” vehicle, feigning injuries, would be sent to a particular doctor and lawyer who would facilitate phony claims by creating a medical history for treatment of nonexistent injuries and making a demand on the appropriate insurance company.
The key to immediate financial gain in each staged collision was advances paid by the attorneys to the “riders” for whom allegedly false claims were being submitted. These advances were paid in the form either of cash payments or loans from local financial institutions, co-signed by the attorney handling the claim. Of the usual advance ranging from $250 to $500, part was retained by the rider-claimant with the rest being distributed among the organizers, recruiters, and others who assisted with various aspects of staging the wreck. When the claim was ultimately settled with the insurance carrier, the proceeds would be applied to (i) repay the advancing attorney or in such cases, to liquidate the guaranteed bank loan and (ii) to pay the inflated doctor’s bill, not infrequently, with kickbacks going to both the organizers and the participating attorneys in addition to their usual shares.
The feature of this case which brought it into federal court was that, in the course of asserting and negotiating for settlement the fraudulent claims of the voluntary victims, the United States mails were used. . . .” (footnotes omitted)

The indictment returned by the federal grand jury contained thirteen counts against twenty-one persons, including physicians, attorneys and the non-professional participants. Fifteen of them were tried. Respondent was initially charged with five counts, one of which was dismissed by the trial court for insufficient evidence. He was convicted by the jury on the remaining counts as charged. One of the counts related to conspiracy to commit mail fraud and the other three to the substantive offense of mail fraud, all relative to a collision staged in Iowa, Louisiana on June 29, 1966. At trial the government produced evidence of four additional staged accidents in which respondent and another attorney represented the claimants, apparently for the purpose of showing knowledge and intent in connection with the conspiracy charge. There was also testimony by passengers who participated in the staged accidents tending to show respondent’s knowing complicity in the scheme, as well as evidence showing that employment contracts securing his services and promissory notes securing advance payments were signed prior to the accidents.

As indicated in our previous discussion, the sole issue to be determined by this Court in a disciplinary action based on conviction of a crime is whether “the crime warrants discipline, and if so, the extent thereof.” Art. of Incorp., La. State Bar Assoc., Art. 15, § 8, para. 7(d) (1971). While the respondent is not, as previously noted, permitted to introduce evidence inconsistent with the essential elements of the crime or which goes to his guilt or innocence, he is allowed to show that the crime did not involve such misconduct or moral turpitude that he should be disbarred. No such showing was made by respondent. In addition, the mitigating circumstances which he properly presented to the court, i.e., that since the conviction he has led a good and useful life and that he has already suffered financially while raising a large family, do not detract from the fact that the conduct on which respondent’s conviction was based is not only seriously criminal but also relates directly to a substantial abuse and misuse by respondent of his skills as an attorney. Thus in conclusion we agree with the findings of the Commissioner, concurred in by the Committee, that respondent has been convicted of a serious crime which reflects on his moral fitness to practice law and find that under the circumstances of this case disbarment is the appropriate disciplinary action.

For the reasons assigned, it is ordered, adjudged and decreed that Henri Loridans be and he is hereby disbarred from the practice of law in Louisiana on and after date of this decree. Respondent is to bear all costs of this proceeding.

DENNIS, J., dissents and assigns reasons.

TATE, J., recused for reasons stated in La. Bar Ass’n v. Shaheen, La., 338 So.2d 1347, this date rendered.

DENNIS, Justice

(dissenting).

I respectfully dissent for the reasons assigned by me in Louisiana State Bar Association v. Shaheen, Jr., 338 So.2d 1347 (La. 1976), No. 55,432.

      . At the time the petition for disciplinary action was filed by the Louisiana State Bar Association on October 11, 1974, the 1921 Constitution was still in effect. The pertinent jurisdictional authority is now contained in section 5 of article 5 of the Louisiana Constitution of 1974.

      . The sentence was later amended from imprisonment to active probation for three years.

      . Subsequent to the filing of the answer, a supplemental petition to the earlier filed exception of prematurity was filed, alleging that the matter was premature because a motion for a new trial was pending before the federal district court. The motion was denied, but apparently is presently being considered by the United States Court of Appeal, Fifth Circuit. Before this Court respondent is not contending that his conviction is not final, but rather in brief is stating that he “agrees with the authorities cited by the Louisiana State Bar Association relative to the procedural finality of a conviction . . . He does argue, however, that the substance of his motion for a new trial “be considered by the Court as evidence of mitigation.”

      . Under the present provisions a mandatory minimum of five years must elapse following disbarment before the disbarred attorney may apply for reinstatement. Arts, of Incorp., La. State Bar Assn., Art. 15, § 12(a) (1971). The previous provision did not require a minimum period of time to so elapse. Art. of Incorp., La. State Bar Assn., Art. 15, § 12 (1971).

      . Article 15, section 8 of the Articles of Incorporation of the Louisiana State Bar Association provides in full as follows:
      (1)Upon learning that an attorney has been convicted of a crime, whether the conviction results from a plea of guilty or nolo contendere or a verdict after trial, the Committee on Professional Responsibility may secure a certificate of such conviction from the applicable Clerk of Court.
      If the conviction is obtained in a Court of another state or a Federal Court, the Committee upon learning of the conviction, shall obtain two (2) copies of a certificate of conviction from the proper Court, and shall retain one (1) copy and may forward the other copy to the Supreme Court.
      (2) The Committee shall then make a determination whether or not the crime of which the attorney has been convicted constitutes a serious crime. The term “serious crime” means a felony or any other crime, the necessary element of which as determined by the statute defining such crime, reflects upon the attorney’s moral fitness to practice law.
      It will be necessary for the Committee in determining whether or not the crime constitutes a “serious crime,” to study the statute defining the crime, particularly if the crime involves the violation of a statute of the Federal Government or another state or jurisdiction.
      (3) Upon completing its determination as to whether or not the crime constitutes a “serious crime,” the Committee shall file a written report with the Supreme Court, setting forth its findings and conclusions.
      (4) If the Supreme Court should concur with the opinion of the Committee that the crime of which the attorney has been convicted constitutes a serious crime, the Supreme Court may suspend the respondent from the practice of law and order the Committee to institute the necessary disciplinary proceedings, provided however, that the disciplinary proceedings so instituted will not, unless requested by the accused, be brought to a hearing until all appeals from the conviction are concluded.
      (5) If the Committee in its report to the Supreme Court has concluded that the crime of which the attorney has been convicted is not a serious crime, or if the Supreme Court should determine independently that the crime is not a serious crime, the Supreme Court will refer the matter back to the Committee.
      (6) An attorney will be reinstated immediately on the reversal of his conviction for a serious crime that has resulted in his suspension, but the reinstatement will not terminate any disciplinary proceedings then pending against the attorney.
      (7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
      (a) The Committee will file a petition, in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
      (b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
      (c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
      (d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.
      (8)Except as provided hereinabove in this Section, the procedure with reference to proceedings based on a conviction of a crime, shall be conducted in the same manner as in ordinary proceedings.

      . As a matter of information, it is noted that in Louisiana State Bar Association v. Ehmig, 277 So.2d 137, 141 (La.1973), this Court held that “[bjefore the Committee on Professional Responsibility can petition the Court for suspension of an attorney whose conviction is not final under Section 8 of Article XV, Articles of the Louisiana State Bar Association, it must hold a contradictory hearing and determine that the conviction involves a ‘serious crime.’ ”

      . The facts are set out more fully in United States v. Perez, supra.


author: DIXON, Justice. DENNIS, Justice

text:
    LOUISIANA STATE BAR ASSOCIATION v. Philip J. SHAHEEN, Jr.
    No. 55432.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Nov. 5, 1976.
    Dissenting Opinion Nov. 17, 1976.

      Henry A. Politz, Chairman, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge (Recused), Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, Counsel, Louisiana State Bar Ass’n, Committee on Professional Responsibility, for plaintiff-petitioner.
    Alfred A. Mansour, Alexandria, for defendant-respondent.
   DIXON, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disbarment proceeding against Philip J. Shaheen-, Jr.; the basis was Shaheen’s conviction in federal court of mail fraud and conspiracy. A hearing was held before John Dale Powers, appointed commissioner by this court. The commissioner found that the conviction evidences both a lack of honesty and trustworthiness and represents a serious crime. Disbarment was deemed an appropriate disciplinary action.

On December 18, 1970 a federal jury convicted Philip J. Shaheen, Jr. of three counts of conspiracy and mail fraud, in violation of 18 U.S.C., §§ 371 and 1341. This conviction was affirmed by the United States Fifth Circuit Court of Appeals sub nom. United States v. Perez, 489 F.2d 51 (1973). Rehearing and rehearing en banc were denied on January 2,1974. The United States Supreme Court denied Shaheen’s application for a writ of certiorari on June 10, 1974.

This conviction grew out of a scheme, involving several lawyers and doctors, to defraud insurance companies by staging fake accidents, after which the allegedly injured participants in the accidents would retain lawyers to represent them in their claims. Chief Judge John Brown of the Fifth Circuit described the scheme as follows:

“The facts of this case, in a purely legalistic sense, need no embellishment in a literary sense to classify this as a piece of prose that could well be called a second ‘American tragedy.’ It would be an American tragedy, not only because the events took place here, but because it is just another instance in which large numbers of Americans get willingly involved in enterprises which reflect a lack of compunction, possibly even a proclivity, to enter into the proverbial ‘get-rich-quick scheme’ evidencing not only a disregard for law but, sadly, also a deafness to conscience. As we undertake our profound but prosaic role of adjudicating these cases, what we see is not pleasant.
It reveals a wreckage of promising professional careers, evidence of deliberate and unabashed attempts to prey upon financially pressed expectant mothers for gain and the seemingly all too eager participation by a large cast of characters in a patently illegal undertaking.
The Scheme
A recital of the facts must precede resolution of the issues raised on appeal. The Louisiana-wide get-rich-quick scheme involved the staging of fraudulent automobile accidents for the purpose of creating false personal injury claims. These claims would be submitted to the insurance carriers for the respective vehicles involved in the wrecks with the aid and contrivance of certain physicians and lawyers.
As the scheme evolved, the participants even coined their own terminology which, though alien to the uninitiated, became known to all those who participated. This glossary of modern day crookedness was quite descriptive. Certain participants were known as ‘recruiters’. The recruiters function, not unnaturally, was to recruit others who assumed titles commensurate with their organizational function. There were the ‘hitters’, whose function it was to drive the ‘hitter’ vehicle in each collision which supposedly was to be liable for causing the accident. Then there was the ‘target’ vehicles. The occupants of the ‘target’ were known as the ‘driver’ and the ‘riders’. It was determined at the outset that pregnant women made exceptionally good riders as they could claim pregnancy related injuries which would be both hard to disprove and easily settleable with the insurance carriers. Throughout the scheme there was an effort made on the part of the participants to use vehicles and drivers which were covered by high limits of liability insurance.
According to a pre-arranged timetable, the ‘hitter’ vehicle would strike the ‘target’ vehicle either broadside or in the rear end. The occupants of the ‘target’ vehicle — the driver and riders — and occasionally some of those in the ‘hitter’ vehicle, feigning injuries, would be sent to a particular doctor and lawyer who would facilitate phony claims by creating a medical history for treatment of non-existent injuries and making a demand on the appropriate insurance company.
The key to immediate financial gain in each staged collision was advances paid by the attorneys to the ‘riders’ for whom allegedly false claims were being submitted. These advances were paid in the form either of cash payments or loans from local financial institutions, co-signed by the attorney handling the claim. Of the usual advance ranging from $250 to $500, part was retained by the rider-claimant with the rest being distributed among the organizers, recruiters, and others who assisted with various aspects of staging the wreck. When the claim was ultimately settled with the insurance carrier, the proceeds would be applied to (i) repay the advancing attorney or in such cases, to liquidate the guaranteed bank loan and (ii) to pay the inflated doctor’s bill, not infrequently, with kickbacks going to both the organizers and the participating attorneys in addition to their usual shares.” U. S. v. Perez, 489 F.2d 51, 54-55. (Footnotes omitted).

Several objections to the commissioner’s findings of fact and conclusions of law have been raised by respondent, who first contends that this proceeding is premature because his conviction is not yet final, there being an appeal presently pending in the Fifth Circuit from a ruling by a federal district judge that denied his motion for a new trial.

Article XV, § 8, paragraph 7 of the Articles of Incorporation of the Louisiana State Bar Association, under which this proceeding was brought, provides:

“(7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
(a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
(b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
(c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.”

Respondent’s conviction became final in June of 1974, twenty-five days after the United States Supreme Court denied his application for a writ of certiorari. Rule 58 of the Rules of the Supreme Court of the United States. See Louisiana State Bar Association v. Ponder, 263 La. 743, 269 So.2d 228 (1972). The appeal on which respondent relies is a post-conviction application for a new trial, first filed in December of 1972 after the first appeal from the conviction was taken April 29, 1971. The possibility of post-conviction relief through applications for writs of habeas corpus or motions for new trials does not affect the finality of the conviction. Louisiana State Bar Association v. Ponder, supra.

Next, respondent contends that Article XV, § 8, paragraph 7(c), relating to the certificate of conviction being conclusive evidence of guilt, is not applicable because his conviction on December 18, 1970 occurred before the effective date of this article, September 1, 1971. This argument has no merit. The conviction became final in June of 1974, twenty-five days after the United States Supreme Court denied writs. Article XV, § 8, paragraph 7 was effective when the conviction became final and is applicable to this proceeding. Louisiana State Bar Association v. Ponder, supra.

Finally, respondent contends that the commissioner erred in refusing to consider the testimony offered by the respondent, through various witnesses, affidavits and transcripts, tending to negate his guilt of the crime charged. Specifically, respondent attempted to show through various witnesses that he had no knowledge of the fact that the accidents were staged.

The commissioner’s ruling is correct. Paragraph 7(c) and (d) of Article XV, § 8 provides:

“(c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.”

Accepting respondent’s position would require the committee to try the respondent anew for the crime of which he clearly stands convicted. This is unrealistic and not contemplated by the articles of incorporation. Rather, under 7(c), supra, the certificate of conviction “shall be conclusive evidence of his guilt of the crime.”

Respondent, at the hearing, may introduce “evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted.” An essential element of the crime for which respondent was convicted is knowledge. 18 U.S.C. § 371. United States v. Johnson, 504 F.2d 622 (7th Cir. 1974); United States v. Roselli, 432 F.2d 879 (9th Cir. 1970). Thus, evidence that respondent had no knowledge of the fact that the accidents were staged is inconsistent with an essential element of the crime for which he was convicted, and hence inadmissible at the hearing.

“Mitigating circumstances” are such as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability. See In re Greiner, 61 Wash.2d 306, 378 P.2d 456 (1963). Respondent argues that the testimony of these witnesses is relevant, even if he cannot be heard to contest his guilt of the crime, to show that his participation in the scheme was somehow lesser than others, i. e., he was on the periphery of the scheme, not in the center.

We believe, however, that such evidence is not evidence of “mitigating circumstances not inconsistent with the essential elements of the crime.” Rather, such evidence goes to the guilt or innocence of the respondent. The committee is not a jury. The jury at his trial found sufficient evidence to prove him guilty beyond a reasonable doubt of mail fraud and conspiracy. The jury determined that Shaheen was not so far toward the periphery of the scheme that he was guiltless, but that he was so directly involved that he was guilty beyond a reasonable doubt. The committee can hear evidence in mitigation, extenuating circumstances which tend to diminish the need for punishment, but it need not hear evidence tending to show only that respondent did not commit the act for which he was convicted.

As to the merits, we agree with the commissioner’s finding that the offenses for which Shaheen stands convicted are serious enough to warrant discipline. The remaining issue is the extent of discipline.

The crimes involved in this case strike at the very heart of our legal profession. Respondent stands convicted by a jury of participating in a scheme to defraud insurance companies by the staging of fake accidents, resulting in fake injuries, for which damages were sought and received from unwitting insurers. Respondent Sha-heen’s part in this episode is summed up by Chief Judge Brown:

“The convicted professionals, five lawyers and two physicians in number, are unanimous in their contention that they were misled by both their clients, or patients as the case was, and the DeMary brothers as to the fraudulent character of the collisions. They contend that the testimony relied on to establish their knowing complicity was self-serving, uncorroborated and unreliable. Appellants point to certain testimony by the government’s key witnesses which was controverted by others of the government’s witnesses and argue tenaciously that these inconsistencies undermine from the validity of the verdict.
We find these contentions without merit. Not only do we refuse to invade the province of the jury, except where the most compelling absence of evidence so dictates, here we perceive much more than the slight evidence required. Tomplain v. United States, [5 Cir., 1930, 42 F.2d 202] supra. Other than the testimony of Kenneth and Larry DeMary and others similarly situated, which is assailed on common grounds (see, notes 41 and 42, supra), the showing on the crucial question of knowledge on the part of the convicted professionals was entirely circumstantial. Nonetheless, it was substantial. Repeatedly, the lawyers dealt, not with their clients, but directly with the DeMary brothers and their appointees. Money exchanged hands, employment contracts were signed, and promissory notes were executed without the lawyers ever having laid eyes on the second party to the transaction. .
. Appellant Shaheen, Hennigan’s law partner in Lake Charles, was initially charged in counts I through VI and XIII of the indictment. [See App. I: (4); App. II: (3)]. Counts V, VI, and XIII against him were ultimately sent to the jury for which convictions were returned. Evidence adduced by the government established Shaheen’s participation in at least one other staged collision, in addition to the June 1, 1966 and July 14, 1966 [App. I: (11), (13); App. II: (6)(8)] accidents, which formed the basis for counts V and VI of the indictment respectively, and the January 5, 1966 accident, evidence of which was stricken by the trial court. He was also charged with two overt acts, reference to one of which was stricken with the January 5, 1966 accident, the remaining two arising out of the July 14, 1966 staged collisions in Sulfur. [See App. I: (13); App. II: (8)]. Again, we conclude that sufficient evidence was adduced to support the jury’s finding that appellants Hennigan and Shaheen were apprised of the fraudulent nature of the collisions and knowingly entered into the overall agreement. There was direct testimony adduced that appellant Hennigan and Shaheen represented claimants in staged collisions without ever conferring with or even seeing the clients from beginning to end. Again, as with Tunis and Loridans the signing of employment contracts, execution of promissory notes, and exchange of money occurred between the appellant attorneys and one of the DeMary brothers. There is direct "testimony that both of these appellant attorneys were fully aware of the fraudulent nature of the collisions. Testimony established that subsequent to the February 17,1966 collision in Monroe, Louisiana [App. I: (6); App. Ill: (2)] one of the claimants represented by Hennigan was unavailable to endorse the settlement check and sign the release. To solve this problem Kenneth DeMary, in Hennigan’s presence, signed the claimant’s name to the check and release after which Hennigan notarized the release, certifying that the claimant had personally appeared before him. There was testimony also that appellant attorney Shaheen customarily demanded and received ‘kick-backs’ in addition to his regular fee for those staged collisions in which he represented claimants. Following the June 1, 1966 collision, one of the claimants testified that upon receiving from Shaheen an advance on the anticipated settlement, the bulk of the advance was turned over to appellant Pru-dhomme for transmission to the DeMar-ys. There is direct testimony that Sha-heen had counseled the DeMary brothers on the type of injuries the claimants should complain of and stated that whiplash injuries could not be detected by means of x-rays. It was testified that he further suggested that pregnant women be used as riders where possible, so they could claim various pregnancy related injuries incurred in the collisions.
Further testimony from two witnesses indicated that upon learning that appellant DeVille had absconded with the money advanced to the claimants after the July 14,1966 accident [App. I: (13); App. II: (8)], both Shaheen and Hennigan were fearful that DeVille would ultimately inform on them to the authorities.” 489 F.2d 51, 72-75. (Footnotes omitted).

Respondent’s conduct was not only reprehensible, but also violated basic tenants of our profession. Disciplinary Rule 7-102 provides:

“(A) In his representation of a client, a lawyer shall not:
(1)File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
(B) A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.
(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.”
See also DR 1-102(4); DR 2-109(1); DR 2-110.

It is appropriate to repeat at this point that a disbarment proceeding is not so much for the punishment of the attorney as it is for the preservation of the integrity of the courts and the salutary effect it has upon other members of the bar. We are impressed with the obvious disregard by respondent of established ethical standards. His fraudulent activities reflect his lack of moral fitness for the practice of law.

Accordingly, for the reasons assigned, it is ordered, adjudged and decreed that the name of Philip J. Shaheen, Jr., respondent herein, be stricken from the Roll of Attorneys and his license to practice law in the State of Louisiana be revoked and the same is hereby cancelled.

DENNIS, J., dissents with reasons.

TATE, J., is recused, having been a character witness in the federal trial.

DENNIS, Justice

(dissenting).

I fully agree that disciplinary action must be taken against the respondent. I will even concede that perhaps he should be disbarred. However, I cannot approve the result of this proceeding, because in my opinion it was achieved without affording the respondent due process of law.

As the majority opinion correctly reflects, disciplinary proceedings were commenced against respondent because of his conviction in federal court of mail fraud and conspiracy to commit mail fraud. The principle crime is defined by 18 U.S.C. § 1341, as follows:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

In essence, the crime could involve a swindle of anything from a few cents to millions of dollars through use of the mails.

The main thrust of Shaheen’s defense was that his degree of culpability was not sufficient to warrant disbarment, because he was only peripherally involved in a scheme perpetrated by others. The respondent attempted to prove this by offering testimony, affidavits and transcripts. But this evidence was given little, if any, regard by the Commissioner because he concluded that “the question of the degree of knowledge on the part of [Shaheen] is not properly at issue” and that no evidence which tended to disprove Shaheen’s guilt of any aspect of the crimes of which he was convicted could be considered. The Commissioner stated that his decision in this regard was dictated by Article XV, § 8(7)(d) of the Louisiana State Bar Association Articles of Incorporation, which provides:

“(7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
it % :}s $
“(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.”

The majority opinion, as I understand it, has adopted the Commissioner’s interpretation of the article.

I do not agree with this interpretation. Standing alone the last quoted sentence, of course, can be given such a construction. However, it would be at odds then with the preceding sentence, which sets forth the principal duty of this Court in this kind of disciplinary proceeding, and that is to determine “whether the crime warrants discipline, and if so, the extent thereof.” Instead, I would construe the entire section to allow the respondent to introduce evidence, not to totally disprove his guilt, but in order to show that the degree of his culpability is not as great as that which might be inferred from the face of the judgment of conviction against him. It is conceivable that the circumstances under which an attorney has participated in the wrongful conduct of a client might be such that moral turpitude would be slight and yet the attorney might be guilty in fact and in law of a crime. Such a situation might justify less drastic action than permanent disbarment of the attorney. See, In re Tinkoff, 101 F.2d 341 (7th Cir. 1939). Cf. La. State Bar Association v. Ponder, 340 So.2d 134 (La.1976). (After considering evidence in mitigation of guilt the Court suspended an attorney for six months following his conviction of making false income tax returns). If we do not recognize this possibility and allow the consideration of evidence tending to prove it, I simply do not see how we can intelligently determine the extent to which an attorney’s crime warrants discipline.

On the other hand, if the article of incorporation cannot be construed as suggested, I would have no recourse but to find the sentence barring introduction of evidence mitigating the degree of guilt unconstitutional as denying due process under both the federal and state constitutions.

The right to hold specific employment and to follow a chosen profession free from unreasonable governmental interference comes within the “liberty” and “property” concepts of the Fifth Amendment to the United States Constitution, Greene v. McElroy, 260 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, 64 A.L.R.2d 288 (1957); Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 99 L.Ed. 1129, 1144 (1955) (concurring opinion); cf. Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Allgeyer v. Louisiana, 165 U.S. 578, 589, 590, 17 S.Ct. 427, 431, 41 L.Ed. 832, 835, 836 (1897); Powell v. Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 995, 32 L.Ed. 253, 256 (1888). Moreover, the requirements of procedural due process must be met before a state can exclude a person from practicing law, including a full and fair hearing in which that person is given an opportunity to contest the bases of the recommendations against him. Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). The Louisiana Constitution of 1974 grants each citizen equally broad protection of liberty in the pursuit of a profession as well as his right to due process and a fair hearing before any governmental restriction may be placed thereon:

La.Constitution Article I, § 2 provides:
“No person shall be deprived of life, liberty, or property, except by due process of law.”
La.Constitution Article I, § 19 provides:
“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

In reaching the decision to disbar Philip Shaheen the Commissioner and this Court did not follow the requirements of the article of incorporation, as correctly interpreted, and certainly did not heed the precepts of our constitutional law. Insofar as I have determined, neither this Court nor the Commissioner has reviewed the record of the federal trial which led to the respondent’s convictions, although this evidence was available to both. This record undoubtedly contains evidence relevant to the degree of his culpability in the form of testimony in his favor as well as cross-examination of the witnesses against him. Instead of reviewing this evidence, the Commissioner and the Court merely accepted as proven those facts stated in the Fifth Circuit Court of Appeals opinion. With all due respect to the able author of that opinion, there are several reasons it should not be used as a basis for our judgment of the extent of discipline warranted in this case. The author was not authorized by our constitution or laws to act as a finder of fact in Louisiana attorney disciplinary proceedings. His function in preparing the opinion was not that of a trier of fact, but that of a federal appellate judge assembling the evidence which would reasonably support the jury’s verdict. In doing so, it may have been unavoidable for him to emphasize some of the most damning evidence against the respondent while properly considering it unnecessary to recite any mitigating evidence in his favor. An independent review of the record of respondent’s trial by the Commissioner and this Court would have required some additional effort but not a retrial of the case as suggested by the Commissioner’s report and the majority opinion. It seems that in order to afford a fair hearing or its equivalent this is the least that should have been done before stripping respondent of his right to practice law and thereby grievously injuring him, his wife, his five children, and his dependent mother. • In concentrating their attention on the federal court of appeals opinion, and in refusing to consider the evidence offered by respondent to show that his involvement in the unlawful scheme was limited, the Commissioner and this Court have deprived respondent of liberty and property without due process of law and may have committed a grave injustice.

I respectfully dissent.

      . “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. June 25, 1948, c. 645, 62 Stat. 701.” 18 U.S.C., § 371.

      . “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U.S.C., § 1341.


author: TATE, Justice. SANDERS, Chief Justice SUMMERS, Justice

text:
    STATE of Louisiana, Respondent, v. Paul E. BOETTCHER, Relator.
    No. 57558.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Dissenting Opinions Sept. 21, 1976; Nov. 11, 1976.

      John E. Conery, Franklin, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Walter J. Senette, Jr., Asst. Dist. At-tys., for respondent.
   TATE, Justice.

On the defendant’s application, we granted supervisory writs primarily to review his contention that he has improperly been denied a physical lineup whereby his innocence of the charge of murder against him may be demonstrated. 329 So.2d 451 (1976).

The primary basis of the charge of murder made against him is verbal descriptions of his appearance and photoidentification of him by two witnesses to the incident, as well as the witnesses’ identification of a motor vehicle found in his possession as similar to the one used by the killer. Despite his request, the defendant has never been afforded a physical lineup before these witnesses.

We granted certiorari to examine the issue of when, if ever, the trial court in its sound discretion may order a lineup to be conducted, if requested by an accused.

Facts

The defendant is charged with second degree murder of Robin McDevitt. The killing took place inside a Morgan City bar about four o’clock in the morning.

A man drove up in a car outside the bar and asked a man (Clifton) coming out of the bar if he knew a certain boat captain. After Clifton said he did not, the man pulled a gun on Clifton and ordered him to go back in the bar.

Once inside, the man asked again about the boat captain. He then left, announcing that anyone who tried to get his license number would be shot.

Robin McDevitt came forward and was hit by one of several bullets the killer shot into the bar. The killer sped away and McDevitt died.

The police found a car meeting the description of the perpetrator’s car and determined that the car belonged to Boettcher, the present accused. When they learned that Boettcher worked on a boat and that his physical description generally met the description of the killer, they located Boettcher on the boat where he worked and arrested him.

The police took a photograph of Boettcher, and returned to the bar with that picture and five others for a photographic showup. The police interviewed about twenty-five people that day and the next, asking them to identify the perpetrator. Only two of these people identified the defendant, Clifton and another man.

In Boettcher’s pro se brief to this court, he contends that Clifton, the only witness who the record reveals has come forward against him, positively identified another man, not Boettcher, before he was shown the photographic showup. Boettcher alleges in brief that the information'came to him through one of his appointed counsel, who had learned it from a policeman.

A preliminary hearing was held at which defendant waived his right to be present. The district court asked that the record show that “the defense counsel here has requested that this preliminary examination be conducted without the presence of the defendant, the defense counsel apparently not wishing to have the defendant exposed to those who will identify or attempt to identify him later.”

At the preliminary hearing, Boettcher’s appointed counsel made an oral motion that the state “conduct a lineup at the preliminary hearing, or in connection with or at the time of this preliminary hearing, wherein the defense counsel has requested that the defendant be placed in a lineup, along with some five or six other persons,” to see if the witnesses can identify him. The court overruled the motion on its holding that, under Louisiana jurisprudence, “a defendant is not entitled to such an out-of-court or out-of-trial time lineup for purposes of seeing if the state’s witnesses can identify him.”

Thereafter, Boettcher was indicted by the grand jury for the second degree murder of McDevitt.

Principle issue

The defendant questions the trial court’s denial of a motion for a lineup. He alleges that several witnesses failed to identify him from photos and that the only one who has actually identified him from photos positively identified another man before seeing the photos.

Louisiana authority

No statutory authority mandates (or forbids) a court to order a lineup at the defendant’s request, in order to assure the fairness of the trial. However, La.C.Cr.P. art. 3 expressly authorizes to courts to adopt procedures not specified by statute, if consistent with the spirit of the provisions of the code and other applicable statutory and constitutional provisions.

Pour Louisiana cases have found no error in a trial judge’s refusal to grant a defendant’s request for a lineup. In each instance, the defendant contended that he was entitled to a lineup in order to avoid the suggestion inherent in an in-court identification, but this court held without discussion that the defendant had no right to demand a lineup. State v. Daniels, 326 So.2d 340 (La.1976); State v. Wright, 316 So.2d 380 (La.1975); State v. Bluain, 315 So.2d 749 (La.1975); and State v. Brooks, 294 So.2d 503 (La.1974): In Brooks and Daniels, we suggested that defense counsel’s right to cross-examine and question the weight to be given identification testimony was sufficient to remedy any suggestion inherent in the in-court identification process.

These decisions, however, all concerned the review of convictions after trial on the merits, where in fact no suggestive identification procedures were proved. Although in some instances the language may have been broader, the actual holding in each case was that, under its circumstances, no reversible error was shown to have there resulted from the trial court’s denial of the lineup.

In the present case, unlike in the cited decisions, we for the first time examine whether, in advance of a trial, a lineup should be judicially ordered, upon proper showing and if requested by the defendant, to assure the fairness of the identification procedures and possibly to prevent an accused’s being subjected to trial despite the lack of any reliable identification of him as the offender (where visual identification is indeed the essential basis of the charge against him).

Fairness-context of the issue

The policy behind the careful judicial examination of identification procedures should initially be noted. As the United States Supreme Court declared in United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 1932-33, 18 L.Ed.2d 1149 (1967):

“A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that ‘[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.’ Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.”

An accused may desire a lineup in order to avoid unfair identification of him as the offender, or his own unnecessary subjection to trial on the charge, for at least three reasons.

First, an innocent defendant may want to exculpate himself as soon as possible. If identification is a central issue and the accused can prove to the prosecutor before trial that crucial eye-witnesses cannot identify him, the charges may well be dropped.

Second, even if the defendant is identified at the lineup he requests, it may be to his interest to discover early in the criminal proceedings the strength or not of the identification testimony. If, for instance, it is strong, he may wish to plead guilty by way of plea bargain.

Third, the defendant will want to make sure that his identification is as free from suggestion as possible. Identification in court at trial or at a preliminary hearing, where the accused sits at the defense table (and may for instance be the only black or person under twenty-five in the courtroom) may be highly suggestive. A witness who might be reluctant to identify the defendant if given the choice of two persons with similar features, might have little hesitancy in identifying the only man in the courtroom who fits the witness’ description, especially in light of the fact that this man behind the defendant’s table is clearly the man the prosecutor thinks committed the crime. (Further, as Wade indicates, once a witness has identified the accused in the suggestive surrounding of a preliminary hearing, he will not be likely to change his mind.) Thus the defendant has a crucial interest to be subject to identification procedures under the least suggestive circumstances possible — and this, of course, is also in the interests of the state, which desires to convict only guilty men and then only after a fair trial.

Other American jurisdictions

In the absence of controlling Louisiana statute or jurisprudence, we shall examine the national jurisprudence on the issue.

Both state and federal courts have held that there is no constitutional right to a lineup. See, e.g.: Bowen v. State, 5 Md. App. 713, 249 A.2d 499 (1969); Commonwealth v. Bradley, 336 N.E.2d 925 (Mass. App.1975); People v. Calinda, 83 Misc.2d 520, 372 N.Y.S.2d 479 (1975); Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975); Fogg v. Commonwealth, 208 Va. 541, 159 S.E.2d 616, 620 (1968); Holmes v. State, 59 Wis.2d 488, 208 N.W.2d 815 (1973); U. S. v. Kennedy, 450 F.2d 1089 (CA 9, 1971), cert. denied, 406 U.S. 924, 92 S.Ct. 1793, 32 L.Ed.2d 125 (1971); U. S. v. Ravich, 421 F.2d 1196 (CA 2, 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970); U. S. v. Munroe, 421 F.2d 644 (CA 5, 1970), cert. denied, 400 U.S. 851, 91 S.Ct. 79, 27 L.Ed.2d 89 (1970). See also: 1 Underhill’s Criminal Evidence, Section 127 at p. 345 (footnote 23) (6th ed., 1973), and cases cited therein; Sobel, Eye-Witness Identifications: Legal and Practical Problems, Section 23 (1972) and cases cited therein.

As held in some of the cited decisions, a pretrial identification by lineup or photo array is not a prerequisite to an in-court identification of the accused, although the lack of one may affect the weight of the identification testimony. See, e.g.; Puckett v. State, 233 Ga. 449, 211 S.E.2d 740 (1975); People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232 (1966); U. S. v. Hill, 449 F.2d 743 (CA 3, 1971).

When the issue is presented, the courts have usually affirmed on appeal the denial of an in-court lineup (i.e., at the merit-trial) on the grounds that the matter is one committed to the sound discretion of the trial court. See, e.g., Commonwealth v. Johnson, 316 N.E.2d 763 (Mass.App.1974); U. S. v. Williams, 436 F.2d 1166 (9th Cir. 1970). (See 436 F.2d 1168, likewise citing protective orders within judicial discretion to avoid in-trial suggestive identification at the trial.) See, e.g.: Commonwealth v. Jones, 287 N.E.2d 599 (Mass.1972); State v. Morris, 259 La. 1001, 254 So.2d 444 (1971). Cf. also, U. S. v. Roberts, 481 F.2d 892 (CA 5, 1973) and People v. Clark, 52 Ill.2d 374, 288 N.E.2d 363 (1972).

While most jurisdictions have held that the defendant has no right to a lineup, several decisions have noted the desirability of ordering one for the defendant upon his proper showing. In People v. Maire, 42 Mich.App. 32, 201 N.W.2d 318 (1972), the lower court’s order for defense counsel and the prosecution to select persons to be used in an in-court lineup was upheld, despite contentions, inter alia, that the order exceeded the power of the judiciary in that it directed and controlled the evidence to be presented by the prosecution and that by ordering such a procedure the magistrate abrogated his duty to determine from all the facts presented by the prosecution whether probable cause exists. The decision stated: “The court is entitled, in its discretion and in its inherent power to control the proofs, to require a procedure which assures the reliability of the identification process.” 201 N.W.2d 318 at 323.

In U. S. v. Ravich, 421 F.2d 1196 (CA 2, 1970) the Second Circuit held that the prosecutor’s failure to conduct a lineup did not violate the Sixth Amendment’s Confrontation and Compulsory Process clauses nor the due process rights to present a proper identification defense. However, the court noted, 421 F.2d 1203: “On the other hand, we can see how a prompt line-up might be of value both to an innocent accused and to law enforcement officers. A pretrial request by a defendant for a line-up is thus addressed to the sound discretion of the district court and should be carefully considered. Without any attempt to be be exhaustive, we think some relevant factors are the length of time between the crime or arrest and the request, the possibility that the defendant may have altered his appearance . . . , the extent of inconvenience to the prosecution witnesses, the possibility that revealing the identity of the prosecution witnesses will subject them to intimidation, the propriety of other identification procedures used by the prosecution, and the degree of doubt concerning the identification.” See also U. S. v. Zane, 495 F.2d 683, 699-700 (CA 2, 1974).

We found no decision which set aside a trial court’s exercise of its discretion to order a lineup upon a proper showing by the defendant, and none which intimated that such an action by the trial court is impermissible under any circumstances. To the contrary, many of the previously cited decisions specifically note that the matter is entrusted to the sound discretion of the trial court, some further noting that a failure to afford such a protective measure might under certain circumstances constitute an abuse of discretion. See, e.g.: U. S. v. MacDonald, 441 F.2d 259 (CA 9, 1971); U. S. v. Williams, 436 F.2d 1166 (CA 9, 1970).

The usual rule is that no constitutional right mandates an out-of-court pretrial lineup. The California Supreme Court has held, however, that due process fairness may require that an accused, upon proper and timely showing, be afforded a pretrial lineup; and it ordered one, reversing the trial court’s denial. Evans v. Superior Court, 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681 (1974). The court noted, 114 Cal. Rptr. 126, 522 P.2d 686, that “The right to a lineup arises, however, only when eyewitness identification is shown to be in material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.” In so deciding, the court in part based its conclusions upon the reciprocal-fairness doctrine of Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), and upon the state’s duty not to deny a defendant access to favorable evidence, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The Evans decision has received scholarly approval. See: Note, Pretrial Identification Procedures: The Expanded Duty to Disclose Favorable Evidence, 50 Notre Dame Lawyer 508 (1975); Comment, Due Process Fairness Requires That Accused be Given a Pretrial Discovery Right to a Lineup, 24 Catholic U.L.Rev. 360 (1975); and Note, Criminal Procedure — Due Process— Defendant’s Right to a Lineup as a Means of Discovery, 21 Wayne L.Rev. 991 (1975); 1974/1975 Annual Survey of American Law 176 (1976).

Where a trial court had denied the defendant a pre-trial lineup under circumstances which made the in-trial identification impermissibly suggestive, in at least one instance a consequent conviction was set aside as irredeemably tainted. U. S. v. Caldwell, 156 U.S.App.D.C. 312, 481 F.2d 487 (1973), see earlier decision also, 151 U.S. App.D.C. 84, 465 F.2d 669 (1973). See also Witcher v. State, 17 Md.App. 426, 302 A.2d 701 (1973).

Based upon considerations of fundamental fairness and trial efficiency, the American Law Institute’s Model Code of Pre-Ar-raignment Procedure recommends affording a pre-trial lineup to the defendant, if he requests it for good cause. Section 160.-2(4)(d), Section 170.2(2)(b), (6), (8). To the same effect is Rule 437 of the Uniform Rules of Criminal Procedure, Rule 437 (1974), adopted by the National Conference of Commissioners on Uniform State Laws. Likewise to the same effect, for similar reasons, is the proposed Federal Rule of Criminal Procedure 41.1(k), see recommended rule and advisory committee report at 52 F.R.D. 409, 466, 471 (1971).

Conclusion as to lineup

In accord with the national jurisprudence, we conclude that an accused has no constitutional or legal right to order a lineup. However, we likewise conclude that a district court has broad discretion to order one or not, in the interests of the fairness of the identification of the defendant, upon proper showing of an exceptional nature that otherwise the trial testimony as to his visual identification (if a material issue) may not be reliable. (The trial court likewise has broad discretion to order protective measures other than a pretrial lineup, such as by seating the defendant elsewhere than in the normal place of an accused in the courtroom.)

Therefore, in the present instance, the trial court was in error in concluding that it did not possess any discretion to grant the defendant’s request for a pretrial lineup, even if a proper showing was made that such is necessary to prevent irreparably suggestive in-trial identification (such as by the natural identification of the defendant as the offender by first viewing him alongside defense counsel at a pretrial hearing or at the trial on the merits.) A nonsuggesti-ble identification procedure of this nature may assure the fairness of the identification of the defendant and may avoid suggestive identifications or denials of due-process rights of constitutional dimensions; it may not only assure the fairness of the trial, but also safeguard from post-trial attack any conviction thereby obtained.

The trial court therefore has the inherent power, see La.C.Cr.P. art. 3, to order a pretrial lineup in its broad discretion, upon a proper showing that the interests of justice will thereby be served. This showing may be met under the evidence reflected by the present record, and in the absence of factors such as suggested in U. S. v. Ravich, 421 F.2d 1196, 1203 (CA 2, 1970), which justify a trial court’s exercise of its discretion not to order a lineup. This evidence indicates that the reliability of an eyewitness identification (from photographs only, based on observations in the early hours of the morning) is shown to be a material issue, and that there exists a reasonable likelihood of a mistaken identification (only two of twenty-five people present were able to identify the accused from the photographs) that a lineup would tend to resolve, and that a lineup has never been held.

We therefore remand this case to the trial court, with instructions to it to hold a hearing as to whether a nonsuggestive lineup to be conducted, in the light of the principle above set forth.

Other substantial issue

An additional contention is made that the defendant has been denied his constitutional right to represent himself, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (overruling State v. Frizzell, 273 So.2d 831 (La.1973), despite his consistent requests to do so. The record reflects some support for these contentions, see minute entry for February 13, 1976 and transcript of hearings of December 3, 1975 and October 16, 1975. On the other hand, the record does not clearly show that no waiver of this right took place. See State v. Snoddy, 332 So.2d 800 (La.1976).

We do not rule upon this issue at this time, but we do note, for purposes of final review (if any), that the waiver or not should be definitely ascertained and demonstrated in the record before the trial. Further, if the accused elects to defend himself, we do not intend to intimate that the trial court does not have discretion to appoint an attorney to assist him.

Other contentions made in brief are likewise properly reviewable on appeal in the event of conviction.

Decree

For the reasons assigned above, we set aside the trial court ruling denying the defendant a lineup, and we remand this case to the district court for further proceedings consistent with the views expressed herein.

REMANDED.

SANDERS, Chief Justice

(dissenting).

We have heretofore held that a defendant in a criminal prosecution has no right to demand a pre-trial lineup. See State v. Daniels, La., 326 So.2d 340 (1976); State v. Wright, La., 316 So.2d 380 (1975); State v. Bluain, La., 315 So.2d 749 (1975); State v. Brooks, La., 294 So.2d 503 (1974).

These holdings are consistent with the weight of authority in both state and federal courts. See, e. g., Fogg v. Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968); Holmes v. State, 59 Wis.2d 488, 208 N.W.2d 815 (1973); U. S. v. Kennedy, 450 F.2d 1089 (9th Cir. 1971), cert. denied, 406 U.S. 924, 92 S.Ct. 1793, 32 L.Ed.2d 125 (1971); U. S. v. Munroe, 421 F.2d 644 (5th Cir. 1970) cert. denied, 400 U.S. 851, 91 S.Ct. 79, 27 L.Ed.2d 89 (1970).

In the present case, the majority holds that the trial court should entertain the motion of a defendant for a pre-trial lineup, that under the guidelines set forth, the demand is addressed to the discretion of the trial judge, and that the trial judge should hold an evidentiary hearing as a basis for exercising his discretion. On the surface, the holding seems harmless enough. On closer analysis, however, it becomes clear that the holding adds a new burden to our already heavily encumbered criminal justice system. It creates a new class of hearings to be held by the trial judge, to be ruled upon by him, and to be reviewed by this Court for abuse of discretion. In my opinion, the trend toward adding new time-consuming mechanisms to our criminal justice procedures has gone far enough. I would stop it here.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice.

      . Pursuant to this authority, for instance, this court judicially extended the function of the motion to suppress, in the absence of specific legislative provision to do so, to testimony alleged to be tainted by improper lineup procedures. State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972).

      . Such a showing might also be met by information not patently unreliable which tends to suggest that another person committed the crime, at least when a principal part of the evidence against the accused is the alleged identification by an eyewitness to the offense. Since no hearing has been held on the defendant’s allegation to such effect, we do not base our present holding upon this circumstance potentially present according (only) to the defendant’s allegations.