author: CALOGERO, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Louis R. KOERNER, Jr.
    No. 83-B-0580.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    See also 433 So.2d 147.

      Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, for relator.
    Louis R. Koerner, Jr., New Orleans, James D. Thomas, II, Wall, Thomas, Riche & Wall, Baton Rouge, Paul Arrington, New Orleans, for respondents.
   CALOGERO, Justice.

The Louisiana State Bar Association brought this disciplinary proceeding against the respondent attorney, Louis R. Koerner, Jr., because of three alleged specifications of misconduct, all related to respondent’s activities in connection with a lawsuit he was handling for a client, one Carole Cross and Cross Company, Inc. in the United States District Court for the Middle District of Louisiana.

The thrust of the specifications was that 1) respondent’s neglect caused a dismissal with prejudice of his client’s case, and he attempted to deceive the client by false advice that the case was still pending; 2) respondent intentionally made misrepresentations to a United States District Court judge (in a certain letter and attached pleading) in an effort to deceive him. The letter and pre-trial order were deceptive and fraudulent, it is alleged; 3) he failed in certain duties relative to preparation of a pre-trial order, but most significantly, he “removed said order from the Clerk of Court and fraudulently affixed [his] signature thereto by use of photocopy devices so that it appeared as if [he] had signed the original order prepared by attorneys for the defendants.”

From the outset respondent has candidly admitted the essentials in Specification No. 1 (that he neglected his client’s case, his neglect caused dismissal of the case and that he told his client the suit was pending, when in fact, he knew it had been dismissed). He contended, however, that the deceptive advice was prompted by a desire to help get the case reinstated and that said advice accompanied his counsel that she should get another attorney. Fuller particulars relative to this matter will be found later in this opinion wherein we quote the Commissioner’s report.

On the other hand respondent has vigorously denied the allegations contained in Specifications 2 and 3.

The committee contends that all three specifications have been proven and that as a consequence respondent should be suspended from the practice of law for two years. Their counsel admitted in oral argument, however, that if Specifications 2 and 3 have not been proven, a formal reprimand would suffice as discipline for respondent’s admitted conduct as relates to Specification No. 1.

The Commissioner, Julian R. Murray, Jr., heard the matter, reviewed all exhibits, including the transcript of the proceedings before the Committee on Professional Responsibility, and made findings which almost entirely coincided with the position taken throughout these proceedings by the respondent attorney. The Commissioner found that the second and third specifications were not sustained by the evidence. And as relates to respondent’s admitted misconduct in Specification No. 1, the commissioner recommended as discipline that this Court impose a public reprimand.

We have thoroughly reviewed the evidence in this case and concluded that the commissioner’s findings are correct in all particulars.

We could hardly improve upon that report and its findings in this somewhat complex factual case. For this reason we incorporate the commissioner’s report of March 15, 1984 as a part of this opinion by attaching it as an appendix.

For these reasons it is the order of this Court that respondent Louis R. Koerner, Jr. be, and he is hereby formally and publicly reprimanded for the conduct charged and proven in Specification No. 1, Committee File No. 6489-A.

Decree

RESPONDENT REPRIMANDED.

Appendix

REPORT OF THE COMMISSIONER

Pursuant to an Order of this Honorable Court dated September 1, 1983, the undersigned was appointed Commissioner in this matter to take evidence and report to the Court my findings of fact and conclusions of law. After proper notice to all parties, a hearing was held on November 3, 1983. There were present Mr. Richard A. Deas, Esq., Assistant Counsel for the Louisiana State Bar Association, and Mr. Wood Brown, III, Esq., representing petitioner; also present were Mr. Louis R. Koerner, Jr., Esq., respondent, and his counsel, Mr. Paul Arrington, Esq. The entire transcript of that hearing and the exhibits offered in evidence are returned herewith.

After considering the testimony and evidence given in this matter and the applicable statutory and jurisprudential law, I hereby make my report to this Honorable Court as required by Article 15, Section 6, paragraph D of the Articles of Incorporation of the Louisiana State Bar Association.

FINDINGS OF FACT

“The respondent, Louis R. Koerner, Jr., a member of the Louisiana State Bar Association, was charged in a Petition for Disciplinary Action, filed by the Bar Association through its Committee on Professional Responsibility, in the Supreme Court of Louisiana under Docket No. 83 B 0580, on March 16, 1983. It alleged the violation of the laws of this State relating to the professional conduct of lawyers under Specifications 1, 2 and 3 as set forth in File No. 6489-A in the Committee’s letter to Mr. Koerner of July 22, 1982; said letter and the specifications contained therein were attached to and made a part of the petition. Prior to the filing of the aforesaid petition, the Committee on Professional Responsibility held a formal hearing on November 9, 1982 and the testimony and exhibits received at that time were, pursuant to stipulation by the parties, entered into evidence at the hearing before this Commissioner on November 3, 1983.

“For the Court’s ready reference a copy of the specifications is attached to this report. While certain particular facts need to be reviewed in conjunction with the various specifications, I find the following background information to be supported by the record and appropriate for preliminary review.

“Respondent has been practicing law for over seventeen years and prior to the incidents complained of in the instant petition he had not been the subject of any professional complaints, and to the contrary, had a good reputation for professional competency and integrity. A large percentage of his practice dealt with complex anti-trust litigation and, as relates to the time period in question, he was particularly involved in an anti-trust case entitled RSE, Inc. d/b/a Harrisburg Asphalt Company, Et Al v. Pennsy Supply, Inc., Et al, Civil Action No. 77-689 in the United States District Court for the Middle District of Pennsylvania, (hereinafter “Harrisburg Asphalt”). Trial of that case was scheduled to begin on June 2, 1980, and all trial counsel had anticipated that it would be concluded within approximately forty (40) trial days or by the end of July, 1980. As the preparation for that trial began in the early spring of 1980, respondent had working for him two associates, plus two paralegals employees, a legal administrator, and a file clerk. He had secured sufficient financial credit to allow him to meet his office expenses through August of 1980 when it was anticipated that the trial in Pennsylvania would be completed. During this same time period, while Mr. Koerner’s legal staff was still intact, the case of Cross Company, Inc. v. Sample Brothers, Inc. S.B.I., Inc., Robert Fortenberry and Graham Manufacturing Company, Inc., John Wilmsen and Elliot Spencer, Civil Action No. 77-447 (hereinafter “Cross”), pending in the United States District Court for the Middle District of Louisiana, was scheduled for a pretrial conference. Respondent represented the plaintiffs in that anti-trust action and lead counsel for the defendant was Mr. B.B. Taylor of Baton Rouge. However, because of the grave illness and ultimate death of Mr. Taylor’s wife during the spring and summer of 1980, the pre-trial conference and the preparation of the appropriate pre-trial order had to be twice continued. Respondent testified that he acquiesced in the two requested continuances because he “felt so bad” about Mr. Taylor’s plight, even though he recognized that a later setting of the pre-trial conference would be to his detriment. This was so because as the case developed in Pennsylvania it became obvious to him that it was going to consume much more than the forty days that had been estimated. In fact, allowing for interruptions during which the court handled emergency matters, the Harrisburg Asphalt case took ten months to complete. During that time period, respondent’s finances were depleted and he was required to lay off all of his staff and close his office.

“The Harrisburg Asphalt case continued sporadically through the months of October, November and December of 1980, during which period Judge Polozola was attempting to get a completed pre-trial order and hold a pre-trial conference in the Cross case. Notwithstanding numerous opportunities which were given to respondent by Judge Polozola to complete the pre-trial order without opposing counsel, respondent failed to do so. That failure ultimately resulted in the court’s dismissal of the Cross case. The facts surrounding that dismissal, and the respondent’s effort to have the case reopened, formed the basis for the three specifications sub judice and are more appropriately considered in the context of those specifications.

Specification No. 1

“This specification in essence alleges that respondent refused and neglected to file the necessary pleadings and perform the necessary professional work to protect his client’s interest, thereby causing the client’s case to be dismissed; and that further, respondent attempted to deceive his client by telling her that the case was still viable when he knew the case had been dismissed. In his post-trial memorandum, as well as at all other times, respondent concedes his negligence under Rule 6-101(A)(3), but denies that the Bar Association established the requisite intent to deceive his client as would be required to find a violation of Disciplinary Rule 1-102(A)(4). He argues that ‘... the evidence tends to establish that far from attempting to deceive his client, Mr. Koerner did everything possible, including conducting thorough research into the matter, to salvage his client's action and to protect her from possible implication.’ (Post-hearing Reply Memorandum from Respondent, p. 3) In support of his position, respondent cites case law and L.R.S. 14:10, defining criminal intent.

“I find that respondent has confused motive with intent. His own testimony at the Committee hearing indicated that he clearly intended to deceive his client as to the status of her case. Even conceding that his motivations for the deceit may have been to further what he considered to have been in the best interest of his client, that is a matter which addresses itself to the disciplinary action to be taken by the Court. (See discussion of this issue under ‘Conclusions and Recommendations’ infra.) I find that within the meaning of Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976) there is ‘clear and convincing evidence’ of the allegations in Specification No. 1 and accordingly, it is sustained.

Specification No. 2

“The gist of this second specification is that respondent intentionally made misrepresentations to United States District Judge Frank J. Polozola, in an effort to deceive him by writing him a letter on January 12, 1981, which itself contained misrepresentations and referred to a pretrial order which was additionally deceptive and fraudulent. Respondent acknowledges that in retrospect he can see where the documents might have been confusing or misleading to the court, but, to the extent that they were, it was purely the result of a mistake with no intent to mislead or deceive. A resolution of the issue requires a further examination of the facts.

“The testimony of Judge Polozola and the documents introduced at the time of the Committee hearing disclosed that the court had difficulty in securing the cooperation of counsel for both sides in the Cross case. At the hearing the judge testified as follows:

I might add that I have never seen a case where the lawyers misbehaved so much as in this case, and that’s both parties, lawyers for the plaintiff and lawyers for the defendants. I think I said in the hearing that we had on March 11, 1981, that I was glad I did not practice law anymore because of the lack of courtesy that the lawyers had shown to each other, even the comments made in the record — if you’ll read that March 11, 1981 comment — I had a lot of problems with the lawyers in this case. (Transcript, Formal Investigatory Hearing, File No. 6489A, p. 108).

The docket sheets confirm respondent’s contention that there were two earlier pretrial conferences scheduled that were continued by the defense in the Cross case. The docket sheet further shows that the third reassigned date for the pre-trial conference was for August 21, 1980, and that it was continued to a fourth resetting (by Minute Entry of July 29, 1980) for October 7, 1980, with a statement that “... absolutely no further continuances shall be granted....” However, as of October 7, 1980, the parties had not prepared the proper pre-trial order under the local rules of the United States District Court for the Middle District of Louisiana and the court gave the parties an additional thirty days in which to file the proper order, and according to the testimony of Judge Polozola, he also gave them a “tongue lashing” regarding the importance of having the order submitted timely and properly.

“The record discloses that during that thirty day extension period defense counsel tried on numerous occasions in both writing and by telephone to secure the cooperation of respondent in preparing the order, but was unsuccessful. Therefore, on November 10, 1980, Judge Polozola issued a rule to show cause why the complaint should not be dismissed for failure of the plaintiff to have followed his instructions to prepare the pre-trial order. That rule was originally set for hearing on December 5, 1980, but was continued at the request of the respondent with his assurances to the court that the pre-trial order would be properly filed on or before December 29, 1980. Notwithstanding his promise to the court, respondent did not file the pre-trial order by December 29, 1980, and the court, after waiting an additional two days to see if perhaps it was in the mail, ultimately ordered that the suit be dismissed with prejudice on January 1, 1981. A judgment to that effect was entered on January 5, 1981.

“As noted in Specification No. 1, respondent admits the neglect of his responsibility to the court as outlined above and takes full responsibility for same. However, the foregoing is merely prologue to the events which follow and give rise to Specification No. 2. The defense counsel, in an effort to respond to the court’s requirement for a pre-trial order, had — after being unsuccessful in getting cooperation from respondent — sent to respondent his version of what he felt the pre-trial order would state and forwarded a copy of same to the court with a letter of explanation. Respondent, who had been tied up in the case in Pennsylvania, returned to his office in New Orleans to find a copy of the pre-trial order prepared' by defense counsel as well as the notice of dismissal entered by the court.

“In an effort to have the case reopened, respondent, on January 12, 1981, sent a letter to Judge Polozola together with a copy of the pre-trial order. He explained to the court that the dereliction had been his, not his client’s. According to his letter to the court the pre-trial order which he was enclosing was “duly executed” and was accompanied by a Motion Por New Trial. The court received the January 12th letter as well as the enclosed pre-trial order, but did not receive a copy of the Motion for New Trial. Respondent sent a copy of his January 12th letter, the pre-trial order, and a copy of the Motion for New Trial to defense counsel. Defense counsel, upon receiving a copy of those documents, immediately wrote to the court and noted that changes had been made in the pre-trial order and that he, defense counsel, had not signed the copy of the pre-trial order which was ultimately sent by respondent to the court.

“Notwithstanding that he did not receive a motion for a new trial, Judge Polozola decided to treat the letter of January 12, 1981 as a motion for a new trial and a hearing on same was ultimately held on March 11, 1981. At that hearing, the court, in addition to addressing the merits of the motion for a new trial, also took up the ethical issue of whether Mr. Koerner had attempted to deceive the court in his letter of January 12, 1981 inasmuch as said letter indicated that the pre-trial order had been “duly executed” when in fact what was submitted to the court was not a pretrial order agreed to by all of the counsel, but one which had been amended by respondent and signed only by him. Mr. Koerner attempted to explain to the court that he did not intend any misrepresentation, and any confusion that did exist was purely inadvertent. Judge Polozola did not accept the explanation by Mr. Koerner as evidenced by his letter of complaint to the Bar Association on March 24, 1981 and his subsequent testimony at the Committee Hearing.

“There can be little doubt but that Judge Polozola showed the patience of Job in extending to respondent so many opportunities to file a proper and timely pre-trial order. However, it is equally apparent that the court’s patience had understandably been exhausted by time the hearing was held on March 11, 1981. As late as that date respondent was continuing to demonstrate confusion, ineptitude and neglect because not only had he failed to send the original of the motion for new trial to the court, he did not even bring a copy himself to the hearing. However, the issues in this specification is not negligence, but intent. The judge was accusing Mr. Koerner of purposely attempting to mislead the court and respondent was replying that even if his letter of January 12, 1981 was confusing, the motion itself would clearly demonstrate that there was no intent to defraud.

“Respondent was attempting, in vain, to explain to the judge that if he would read the letter in context with the motion it would be clear that he had no intent to deceive, because in the body of the motion it clearly states “... it is respectfully submitted that the Court should accept the pre-trial order of plaintiff as submitted and executed by counsel for plaintiff....” (Emphasis added.) Although clearly exasperated at that point in the proceedings, Judge Polozola did make the appropriate inquiry regarding the existence of the missing Motion for New Trial. After noting that no such motion was filed in the record, the colloquy continued as follows:

MR. KOERNER:
I believe I filed a motion for a new trial.
THE COURT:
Okay. Do you have a copy in your records there?
MR. KOERNER:
Not with me. I gave all of my records to Mr. Hollingsworth. [The attorney who was taking over the case on behalf of Mrs. Cross] Did you find a copy of the Motion for New Trial? [Apparently referring to Mr. Hollings-worth] I know I prepared one.
MR. HOLLINGSWORTH:
Your Honor, I received Mr. Koerner’s file and I went through it at great extent (sic) and I have not seen a Motion for New Trial.
THE COURT:
My minute entry — the minute entry that I issued on January 22, says: On January 14, 1981, the Court received a letter dated January 12, 1981 from Mr. Louis R. Koerner, Jr., counsel for plaintiff. Although the letter filed with the Court by Mr. Koerner fails to comply with the local rules of court and the Federal Rules of Civil Procedure, the Court shall treat the letter of January 12, 1981, as a motion for a new trial.
MR. KOERNER:
It is my understanding the I filed a motion for a new trial and I believe I sent copies to the defense. They’re here. They can tell you whether they received it.
THE COURT:
Do you all have copy (sic) of the Motion For New Trial, because I have no Motion For New Trial.
MR. TAYLOR:
No such thing was filed in the record anywhere.

(See Exh. C-7, Transcript Civil Action No. 77-447-B, United States District Court for the Middle District of Louisiana, March 11, 1981, pp. 7-8.) (Emphasis supplied.)

“I note with interest that the answer given by defense counsel to the inquiry of the court was a non sequitur. In response to assurances by Mr. Koerner that he had sent copies of the missing motion to defense counsel the court was specifically inquiring of defense counsel whether or not he had a copy of the motion. Rather than answer that question directly, stating that either he did or did not have a copy, Mr. Taylor avoided the issue by responding that no such pleading was “filed in the record.” I am not called upon to make any evaluation as to whether defense counsel was candid with the court in his response, and I do not do so.

“However, I do find that had he answered the court’s question directly he would have admitted that he did have a copy of the Motion for New Trial and said motion did clearly state that the pre-trial order that was submitted to the court was “... executed by counsel for plaintiff....” It is doubtful that had the copy of the motion been made available to Judge Polozola as he requested that he would have found there was any intent to deceive him on the part of Mr. Koerner. At any rate, I have reviewed a copy of the motion and I conclude that there was no such intent.

“While I find that the language in the Motion For New Trial clearly established a lack of intent to deceive the court on the part of respondent, I also note that my conclusion is substantiated by other corroborative evidence. The copying of the original pre-trial order and the adding of the interdelineations with a different typewriter belie any intent to deceive the court. Not only are they obvious on their face, but the cover letter of January 12, 1981 specifically notes that changes were made by respondent. The review of the signature page clearly indicates that it was only signed by respondent, and the signatures of defense counsel are photocopies.

“I further note that even if one were disposed to conclude such a sloppy effort to deceive on the part of respondent, under no circumstances would it be expected that he would have sent copies of the altered documents to defense counsel. I credit as correct the testimony by respondent and Judge Polozola to the effect that the relationship between opposing counsel in the Cross case was less than friendly. A large portion of the language deleted by respondent from the proposed pre-trial order submitted by defense counsel related to defense efforts to blame him for the previous failures to have timely completed the pre-trial order. Respondent had to know when he deleted that language, and changed other facts which the defense contended he had previously “admitted”, defense counsel was going to immediately contact the court to complain.

“Accordingly, I find Specification No. 2 is not sustained.

Specification No. 3

“For the most part I find Specification No. 3 to be duplicitous in that it either alleges neglect of professional responsibilities as covered in Specification No. 1, or it relates to the alleged deceptive pre-trial order referred to in Specification No. 2. The third specification does embellish on the alleged fraudulent use of the pre-trial order by contending that respondent removed it from the clerk of court and thereafter refiled it in an altered state. Apparently, Specification No. 3 was perceived by respondent to be uniquely odious because prior to the hearing before this Commissioner, he filed a motion with the Court to have the third specification stricken. That motion was opposed by the Bar Association and over the dissents of Justices Calogero and Marcus, the Court declined to strike it. However, at the hearing before me the attorneys for the committee acknowledged that they had no evidence in support of Specification No. 3, and they specifically noted that they had no evidence indicating that respondent ever removed from the possession of the clerk of court, or refiled, any pleading. Accordingly I find that to that extent, if any, Specification No. 3 avoids being duplicitous, it is nevertheless not sustained.

CONCLUSIONS AND RECOMMENDATIONS

“There remains the issue of the recommendation for disciplinary action regarding Specification No. 1 which I found to have been sustained. That specification had elements of both deceit and neglect.

“I accept as true respondent’s testimony that the only reason he failed to advise his client that her lawsuit had been dismissed was because he felt that such knowledge would be detrimental to her. He apparently had researched the issue and determined that ordinarily the courts will not penalize a litigant, to the extent of dismissing the lawsuit, for derelictions of the attorney which the litigant was neither responsible for, nor aware of. Consequently, Mr. Koerner perceived it to be in the best interest of his client to be unaware of what had transpired in her case until the motion for new trial could be heard. I credit as correct respondent’s position that his withholding of information from his client was not to benefit himself. Both he and Mrs. Cross testified that he had advised her to seek another attorney to represent her in the matter, and in giving such advice respondent had to know that the new attorney would uncover and disclose to Mrs. Cross exactly what had taken place. While withholding of information from a client is never to be condoned, I do find that the deceit in the instant case was designed to be of very limited duration and precipitated by a laudable, albeit misguided, motive.

“On the issue of neglect I noted previously that respondent had never challenged that allegation. To his credit he had forthrightly admitted his inability to have properly handled his client’s case. He fought valiantly at the hearing on March 11, 1981 to save his client’s case from dismissal notwithstanding failure to have properly pursued it. I also credit as accurate respondent’s testimony that he was under extreme personal and professional pressure as a result of the unexpected protracted nature of the Harrisburg Asphalt case. In fact, given the extreme nature of respondent’s difficulties, and the fact that he had to actually close down the operations of his office, his inability to have completed his other professional obligations might be forgiven entirely were it not for the continued forbearance which respondent requested, and received, from Judge Polozola. The system can and does allow for the occasional “overload” which attorneys experience, but there was ample opportunity in the present case for respondent to have seen it coming and made alternate arrangements that better served the court and his client.

“Considering the totality of the circumstances, I do not feel that disbarment should be seriously considered. While suspension is a plausible alternative, I also decline to make that recommendation. I have not found any cases, nor have any been cited to me by the Bar Association, where the Court has ordered suspension in a comparable situation. In reaching this conclusion I have taken into consideration the prior good record of respondent, the fact that the instant aberration in his professional conduct was precipitated by tremendous pressure, and that his disservice to one client and one court was occasioned in large measure by his effort to properly serve another client and another court. I have also considered the fact that he was forthright in admitting his dereliction and took immediate steps to recompense the injured client for her loss.

“I must in candor also state that my position is based in part on my belief that respondent has, to a large measure, been punished by having his professional reputation damaged by the inclusion of Specification No. 3 in the petition which the Committee saw fit to bring against him. While it is true that for the most part that specification was merely duplicitous, it would be to ignore reality not to recognize that allegations that respondent removed documents from the clerk’s office and refiled them with changes carried a most sinister connotation. Those who were most likely to be interested in the allegations against respondent are the same persons who would be knowledgeable enough to realize that absent some nefarious action, attorneys are not at liberty to remove and refile any documents in the possession of the United States District Clerk. It was apparent that respondent felt accutely the sting of that allegation as evidenced by his motion to have it stricken or to at least have it not made public until the proceedings had been concluded against him. Inasmuch as the attorneys for the Bar Association admitted to me at the time of the hearing that they had no evidence to support allegations that he removed any court records, there could be no question but that respondent’s reputation as to those particular allegations has been unjustifiably damaged.

“While I do not recommend suspension I do believe that it is necessary that the Court clearly state that dereliction of professional responsibilities and deceipt of clients, even for noble motives, will not be tolerated. Accordingly, it is my recommendation that the Court issue a public reprimand to respondent for the infraction of the disciplinary rules alleged in Specification No. 1.”

Respectfully submitted,

/&/ Julian R. Murray, Jr. JULIAN R. MURRAY, JR. COMMISSIONER

March 15, 1984

      . The deceipt issue revolved around respondent’s statement in his letter that the attached pre-trial order was “duly executed". If it had in fact been duly executed within the meaning of the local rules of court the original would have had to have been signed by all attorneys, and since the submitted order was only signed by respondent (with the signatures of defense counsel only being photocopies) the court concluded there must have been an intentional misrepresentation.

      . At the hearing before the Committee, Mr. Taylor originally denied ever having received, or even knowing anything about the existence of, the Motion For New Trial which respondent had allegedly filed. However, after having had his attention called to a letter which he wrote to Judge Polozola in which he quoted at length from the motion he then remembered its existence. "I agree with you completely. It appears to indicate that I had a copy of it. Now, I can — it comes back to me now that when Judge Polozola said that there was no motion for new trial in the record, that I was somewhat surprised. I had totally forgotten this; you have called my attention to the fact that I apparently had a copy of the motion for a new trial in my hand

      (Transcript, Formal Investigatory Hearing, File No. 6489-A, p. 61) (Emphasis supplied.)

      . Although Mr. Taylor denied he was appearing as "prosecutor” of Mr. Koerner at the Committee hearing, I find the tenor of his testimony, taken as a whole, indicated personal animosity toward respondent. At one point in his testimony when he was being particularly vituperative counsel for respondent questioned him as follows:
      Q. Mr. Taylor, did I understand you correctly when you came here today you said you did not come here as a prosecutor?
      A. That's right. But I was never happy with Mr. Koerner who kept me working for four years on this meritless case.
      (Transcript, Formal Investigatory Hearing, File No. 6489-A, p. 58)


source: Caselaw Access Project

author: MARCUS, Justice. LEMMON, Justice, dissenting.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Edmond G. MIRANNE, Sr. and Edmond G. Miranne, Jr.
    Nos. 81-B-3235, 81-B-3236.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Thomas 0. Collins, Jr., Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Phi-lippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchi-toches, for applicant, in Nos. 81-B-3235 and 81-B-3236.
    F. Irvin Dymond, New Orleans, for respondent in No. 81-B-3235.
    Don M. Richard, New Orleans, for respondent in No. 81-B-3236.
   MARCUS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted disciplinary proceedings against Edmond G. Miranne, Sr. and Edmond G. Miranne, Jr., members of said association. The Committee’s petitions for disciplinary action were based upon respondents’ final convictions of “conspiracy, false statements, and mishandling of funds” in connection with loans made by Security Homestead Association, a federally-insured savings and loan association. Miranne Sr. was also convicted of perjury. He was president and chief executive officer of Security, while Miranne Jr. was Security’s attorney and a board member.

On January 29, 1981, Edmond G. Mir-anne, Sr. and Edmond G. Miranne, Jr. were indicted in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Count 1 charged the Mirannes and a real estate developer, Burl Mahl, with conspiracy in violation of 18 U.S.C. § 371. Counts 2-51 charged the Mirannes with the offense of making false statements in loan applications in violation of 18 U.S.C. §§ 1014 and 2. Counts 52-101 charged the Mirannes with misapplication of funds belonging to Security, in contravention of 18 U.S.C. §§ 657 and 2. Counts 102 and 103 charged only Miranne Sr. with perjury in violation of 18 U.S.C. § 1621.

The essence of the Mirannes’ offenses grew out of the approval of a series of installment loans to Mahl on three occasions. While Mahl stated on the loan applications that the purpose of each loan was to “renovate property,” in fact, he illegally used the funds to purchase various properties. Because the funds were to be used to purchase property, they should have been made as first mortgage loans rather than installment loans. Miranne Sr. approved the loans, knowing that Mahl did not yet own the properties, while Miranne Jr. passed acts of sale and performed title examinations of the various properties.

On August 12, 1981, following convictions resulting from their pleas of not guilty, the Mirannes were sentenced to two years imprisonment on each count, to run concurrently. Execution of these sentences was suspended and the Mirannes were placed on probation for a period of three years. Miranne Sr. was fined $27,-500, ordered to perform 320 hours of public service work, and to pay $130,000 to Security in restitution for the loss it suffered when Mahl defaulted on the loans. Mir-anne Jr. was fined $27,775, ordered to perform 320 hours of public service work and to submit to an alcoholic rehabilitation program.

Based upon respondents’ convictions of the aforesaid crimes and its determination that these were “serious crimes” reflecting on respondents’ moral fitness to practice law, the Committee on Professional Responsibility filed petitions in this court on December 21, 1981, seeking orders suspending the Mirannes from the practice of law and ordering the Committee to institute the necessary disciplinary proceedings. On January 15, 1982, this court granted the requested orders. Respondents’ petition for reconsideration of the orders was denied. 410 So.2d 1138 (La.1982).

Subsequently, on August 6, 1982, the Committee filed petitions in this court seeking disciplinary action against respondents under the provisions of Article 15, section 8, paragraph 7(a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association. After issue was joined, a Commissioner was appointed by this court. A consolidated hearing was conducted on September 12, 1983, at which each respondent was afforded full and unrestricted opportunity to present any and all evidence of “mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted....” In the formal report of the Commissioner to this court, it is stated that the Commissioner found the offenses for which respondents were convicted to be felonies under federal law constituting “serious offenses” warranting disciplinary action, the only question being as to the extent of such discipline. The Commissioner recommended that respondents be suspended from the practice of law for three years, dating retroactively from this court's suspension on January 15, 1982. Respondents filed their concurrence to the report and recommendation of the Commissioner. The Committee on Professional Responsibility concurred in the findings of fact and conclusions of law of the Commissioner but disagreed with his recommendation for the discipline to be imposed. It urged that respondents be suspended from the practice of law for one year from the date of this court’s decision. The matter was then submitted to this court under our original jurisdiction.

The sole issue to be determined by this court in a disciplinary proceeding based on a conviction of a crime is whether “the crime warrants discipline, and if so, the extent thereof.” Article 15, section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association; LSBA v. Marcal, 430 So.2d 47 (La.1983).

At the hearing before the Commissioner, respondents introduced evidence of mitigating circumstances.

Miranne Sr. is sixty-four years old. He graduated from law school and was admitted to practice in Louisiana in 1948. His father was secretary-treasurer and manager of Security, and Miranne Sr. began working there as an office boy at the age of twelve. Upon graduation from law school, he went into practice with a New Orleans attorney. One year later, he assumed the position of notary public for Security, while continuing in private practice. In 1957, respondent became the attorney for Security and during that same year he became vice-president. Miranne Sr. became president and chief executive officer of Security in 1967. When he assumed this position, the assets of the savings and loan were about $40 million; when he left his position in 1981, the assets were in excess of $500 million.

At the hearing, Miranne Sr. testified about the incidents that led to his federal convictions. He maintained that at the time he approved the loans to Mahl, he did not realize that the home improvement loans could not be used to purchase property. Respondent’s perjury conviction resulted from his denial in a deposition that he had any other “business transactions” with Mahl. At the hearing, however, he reiterated his claim that he had rejected Mahl’s proposed purchase of a building owned by Miranne Sr. Respondent further indicated that he had no personal interest in the properties Mahl purchased with the Security loans. He noted that the law firm of Miranne and Miranne did receive payment for legal services rendered in connection with the acts of sale and title examinations.

When Miranne Sr. learned that he was to be indicted, he took a voluntary leave of absence from his position at Security. He subsequently lost his position there, as well as his pension and insurance. Since his suspension from practice, Miranne Sr. has derived the majority of his income from investments; he has also conducted real estate operations. Pursuant to his federal sentence, Miranne Sr. has done weekly volunteer service at the main office of the Associated Catholic Charities of New Orleans and has paid the $27,500 fine. He has made financial restitution to Security in the amount of $130,000 for the loss it suffered when Mahl defaulted on the loans.

Edmond G. Miranne, Jr. is 37 years old. He is married and has two children. He was admitted to practice in Louisiana in 1973, when he began to practice law with his father’s firm. In mid-1974, Miranne Jr. became the attorney for Security. He was made a director in the same year. He resigned from these positions in 1981, upon learning that he was to be indicted. Since then, he has been trying to develop his own business and receives a salary from his father for assisting him in his investments. Miranne Jr.’s involvement in the loan transactions with Mahl comprised passing the cash sales and performing title examinations of the properties Mahl purchased. He took no part in preparing or offering any information listed on the loan applications. He testified that he had contemplated a partnership with Mahl which would have given him equity in the properties Mahl purchased with the Security loans. This partnership never came to fruition. Miranne Jr. has paid the fine imposed by his federal sentence and is currently doing public service work at St. Vincent’s Infant Home, which he intends to continue after his public service time is completed. While his doctor is not convinced that he has a drinking problem, he plans to enroll in an alcoholic rehabilitation program to fulfill his sentence. There was also testimony that both Mirannes have performed their public service work very satisfactorily and have established very good reputations in the community for honesty and dependability.

We agree with the finding of the Commissioner, concurred in by the Committee, that respondents have been convicted of serious crimes which reflect adversely upon their moral fitness to practice law. Hence, disciplinary action is warranted. We further agree, after reviewing the evidence of mitigating circumstances as set forth above, that respondents should not be disbarred but rather should be suspended from the practice of law for an appropriate period of time. Both the Mirannes have established reputations in the community as good attorneys and honest businessmen. There is no evidence that either Miranne has ever been the subject of a previous complaint about his professional activities. Miranne Sr. has made restitution to Security and thus any financial loss caused by respondents’ conduct has been eliminated. The record reflects that neither of the Mir-annes had any personal interest in the properties Mahl purchased with the improperly obtained loans. While the Commissioner recommended suspension for three years, dating retroactively to January 15, 1982, the Committee recommended suspension for one year from the date of this court’s decision (roughly a four-year suspension). We consider suspension from the practice of law for a period of three and one-half years, commencing January 15, 1982, as an appropriate penalty under the circumstances.

DECREE

For the reasons assigned, it is ordered, adjudged and decreed that Edmond G. Mir-anne, Sr. and Edmond G. Miranne, Jr. be suspended from the practice of law in Louisiana for a period of three and one-half years commencing January 15, 1982.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice, dissenting.

I dissent from imposing any penalty in excess of the three-year suspension recommended by the Commissioner, especially in view of the fact that the federal district judge who heard the evidence concluded that the crime was not serious enough to warrant any confinement.

      . 18 U.S.C. § 371 provides:
      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 SI0,000 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.

      . 18 U.S.C. § 1014 provides in pertinent part:
      Whoever knowingly makes any false statement or report ... for the purpose of influencing in any way the action of ... any institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation ... upon any application ... or loan ... shall be fined not more than $5,000 or imprisoned for not more than two years or both.

      . 18 U.S.C. § 2 provides:'
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

      . 18 U.S.C. § 657 provides in pertinent part:
      Whoever, being an officer ... of or connected in any capacity with ... any institution the accounts of which are insured by the Federal
      Savings and Loan Insurance Corporation ... willfully misapplies any moneys ... belonging to such institution or pledged or otherwise intrusted to its care, shall be fined not more than $5,000 or imprisoned not more than five years.

      . 18 U.S.C. § 1621 provides:
      Whoever—
      (1) having taken an oath before a competent tribunal, officer, or person,' in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
      (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;
      is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

      . The jury found Miranne Sr. guilty of one count of conspiracy, 25 counts of making false statements, 25 counts of misapplication of funds and two counts of perjury. Miranne Jr. was found guilty of one count of conspiracy, 50 counts of making false statements and 50 counts of misapplication of funds.

      . This action was taken pursuant to Article 15, section 8, paragraphs (1) through (6) of the Articles of Incorporation of the Louisiana State Bar Association.

      . Article 15, section 8, paragraph (7)(a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association provide:
      (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.

      .La. Const, art. 5, § 5(B) (1974).


author: MARCUS, Justice.

text:
    Norman JAECKLE v. DRESSER INDUSTRIES, INC.
    No. 84-C-0629.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    David B. Allen, Samanie & Barnes, Hou-ma, for plaintiff-applicant.
    Robert M. Johnston, Johnston & Du-plass, New Orleans, for defendant-respondent.
   MARCUS, Justice.

Norman Jaeekle brought this suit against his former employer, Dresser Industries, Inc., to recover permanent total disability benefits under the Louisiana Worker’s Compensation Law for a back injury which occurred during the course and scope of his employment. The trial judge rendered judgment in favor of Dresser, based on findings that Jaeckle was not disabled on the date of trial and therefore was not due compensation beyond the date payment was terminated. The court of appeal affirmed with one judge dissenting. On Jaeckle’s application, we granted certio-rari to review the correctness of that decision.

The record reflects that Jaeckle was hired by Dresser in August of 1981 as a wire line operator. His duties included driving a truck and loading and unloading heavy machinery. On January 24, 1982, Jaeckle, age 28, was unloading a heavy object from a truck when he felt something pop in his back. The next day, after experiencing severe back and neck pain while, driving, he reported the incident to his supervisor.

Jaeckle was sent to the company doctor, Dr. Richard Warren, who took x-rays and prescribed medication and rest. One week later, Dr. Warren referred Jaeckle to an orthopedic surgeon, Dr. Chris Cenac. Dr. Cenac took x-rays, prescribed medication, and advised that Jaeckle could return to light duty work in ten days. Jaeckle testified that after ten days he was still in great pain and therefore did not return to work. He consulted Dr. Michael Flynn, a chiropractor, who treated him for about one month. Dr. Flynn initially recommended that Jaeckle rest for one week and then return to work on light duty. Jaeckle went on light duty from late February until March 20, 1982. During this time, he was required to drive and at times to lift heavy machinery. Because this work was quite painful, in late March he consulted Dr. Gary Guidry, an orthopedic surgeon. Dr. Guidry or his associates saw Jaeckle eight times between March 22, 1982 and July 13, 1982. At Dresser’s request, Jaeckle was examined by Dr. James Williams, an orthopedic surgeon, on June 1,1982 and again in October of 1982.

Dresser paid Jaeckle wages until March 22, 1982, when he ceased to work and began to receive compensation benefits. Compensation was terminated June 27, 1982, after Dr. Williams advised Dresser that in his opinion Jaeckle was not disabled. Jaeckle testified that he moved to Buffalo, New York, in July of 1982 to live with his parents because he and his pregnant wife had no means of support after compensation was terminated. Between the move to New York and his return to Louisiana for trial in October of 1982 (some three months), Jaeckle did not consult a physician for his back.

Dr. Guidry’s testimony reflects that during his orthopedic examination of Jaeck-le in late March, he found indications of involuntary muscle spasm on either side of the spinal column. He stated that the spasms represented an objective finding of muscle reaction to pain or injury. He prescribed medication and directed Jaeckle to cease working and to begin physical therapy. To diagnose the injury, Dr. Guidry ordered a CAT scan of Jaeckle’s lower back, an electromyelographic study and a lumbar myelogram.

The CAT scan, conducted by Dr. Wayne Martin, indicated a central protruding disc at L5-S1 that slightly indented the dural sac. The electromyelographic study was performed by Dr. Daniel Trahant who observed pathology at the same location. The lumbar myelogram was abnormal, suggesting a herniated invertebral disc at L5. Based upon these objective diagnostic studies, Dr. Guidry concluded that Jaeckle’s subjective complaints of back pain were caused by a herniated disc. He advised Jaeckle not to return to his former job and discussed the possibility of surgery to relieve the pain. Jaeckle elected to pursue a conservative course of treatment which included therapy and rest. Dr; Guidry examined Jaeckle again on the day before trial. Jaeckle complained that he had been experiencing increased pain. Dr. Guidry reconfirmed his previous diagnosis and was of the opinion that as of that date Jaeckle could not safely return to his former employment.

Dr. Williams testified that during his June 1 examination, Jaeckle complained that he had been experiencing pain in his low back and both legs, as well as occasional numbness in his right foot. Dr. Williams stated that Jaeckle showed no signs of back pain during his orthopedic examination other than discomfort at hand pressure applied over the spinous processes of the lumbar vertebrae. The doctor disagreed with Dr. Guidry’s interpretation of the diagnostic tests. He opined that the lumbar myelogram showed no evidence of a ruptured disc. While conceding that the CAT scan indicated a disc protrusion, Dr. Williams stated that this protrusion did not appear to impinge on the nerve roots and was therefore not clinically significant. He concluded that Jaeckle’s subjective complaints were not consistent with a diagnosis of a herniated disc and that there was no objective evidence of any injury or disability. After re-examination of Jaeckle in October, Dr. Williams’ opinion remained the same.

The record indicates that Jaeckle was involved in an altercation with his brother-in-law about two weeks after the work-related accident. He testified that he fell during the fight and cut his upper back, but did not feel that the fall had injured his lower back. Two days after this fight, Jaeckle reported to an emergency room, seeking treatment for the cut. At trial, conflicting evidence was presented as to whether or not Jaeckle had reported the previous work-related injury to the emergency room staff.

In order to recover benefits under the Louisiana Worker’s Compensation Law, an employee must establish that he received a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031. It is not disputed that Jaeck-le suffered a work-related accident within the meaning of our worker’s compensation law. Hence, the sole issues presented are whether or not Jaeckle was disabled as a result of the accident and, if so, the amount of compensation to which he is entitled.

A claimant in a worker’s compensation proceeding bears the burden of proving to a legal certainty and by a reasonable preponderance of the evidence the nature and extent of his disability. Culp v. Belden Corp., 416 So.2d 1311 (La.App. 3d Cir.1982), aff’d, 432 So.2d 847 (La.1983); Daney v. Argonaut Ins. Co., 421 So.2d 331 (La.App. 1st Cir.1982). The diagnosis and opinion of the treating physician are entitled to more weight than those of doctors examining the plaintiff for consultation for litigation purposes only. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982).

The trial judge, in finding that Jaeckle did not prove his disability, failed to give more weight to the opinion of Dr. Guidry as the treating physician than that of Dr. Williams. The judge stated, “[Wjhen Mr. Jaeckle moved to New York, the status of Dr. Guidry as a treating physician in fact ceased.” We disagree. Jaeckle sought out Dr. Guidry’s services to obtain relief from his back pain. Dr. Guidry treated Jaeckle over a period of about three and a half months, during which time Jaeckle visited his office eight times. The doctor prescribed medicine and physical therapy in order to relieve Jaeckle’s pain and ordered diagnostic tests in order to determine the cause of Jaeckle’s continued discomfort. Jaeckle did not seek the advice of any other physician between his visit to Dr. Guidry in late July and his October examination. Under these circumstances, Dr. Guidry did not cease to be Jaeckle’s treating physician.

A careful review of the record leads us to conclude that Jaeckle proved by a preponderance of the evidence that he was disabled as a result of the work-related accident. The results of the CAT scan, electromyelographic study and lumbar my-elogram constitute objective evidence that Jaeckle sustained a herniated disc. The findings of these diagnostic tests substantiate Jaeekle’s subjective complaints and support the conclusions of Dr. Guidry, whose opinion as the treating physician is entitled to more weight than that of Dr. Williams. Jaeckle’s failure to seek medical attention between his move to New York and his return to New Orleans is understandable in view of the fact that he had no source of income to pay a doctor and indeed was forced to rely on his parents for support.

Dresser attempted to establish that Jaeckle’s fight with his brother-in-law two weeks after the work-related accident presented an intervening cause that should relieve Dresser of its compensation responsibility. The trial judge correctly found that Dresser did not meet its burden. From the record, we find insufficient proof that the altercation constituted an intervening cause.

In sum, we conclude that the trial judge was clearly wrong in finding that Jaeckle did not prove that he was disabled by a preponderance of the evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Rather, we find that Jaeckle met his burden and is entitled to compensation benefits. As the court of appeal found no disability, it did not reach the issue of the amount of compensation to which he is entitled. We therefore consider it more appropriate to remand the case to that court for it to determine the amount of Jaeckle’s recovery.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the ease is remanded to the court of appeal for further proceedings consistent with the views herein expressed.

DENNIS, J., concurs.

      . 447 So.2d 15 (La.App. 1st Cir.1984).

      . 450 So.2d 356 (La.1984).

      .The testimony of Drs. Guidry and Williams at trial was by deposition.


author: DENNIS, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Frank J. LARRE’.
    No. 83-B-1246.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      Thomas 0. Collins, Jr., Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D'Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., for applicant.
    Robert T. DeFrancesch, Lawrence D. Wiedemann, New Orleans, for respondent.
   DENNIS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this proceeding for disciplinary action against Respondent, Frank Larre'. The Committee’s petition charged the respondent, with five specifications of professional misconduct arising out of three unrelated incidents. We find, as did the Commissioner, that Respondent committed the alleged acts of misconduct, and conclude that he should be suspended from the practice of law for six months.

In the first incident, Respondent was retained by three clients to represent them in their personal injury claims and filed suit in the district court in their behalf. In November of 1981, he settled the suit and received drafts on behalf of his clients pursuant to the settlement agreement in the total amount of $4,735.00. Respondent failed to disburse these funds to his clients, and commingled and converted them to his own use. In the second incident, Respondent was retained to represent three other clients in their personal injury claims, and in January of 1982 settled the claims. Drafts in the total amount of $6,900.00 were received by him in behalf of his clients in January of 1982, but he failed to disburse any funds to his clients, and commingled and converted them to his own use. Much of the above monies were deposited in Respondent’s attorney trust account, and some of the drafts were kept in his files uncashed for long periods of time. There is no dispute concerning the facts that Respondent commingled and converted. In March of 1982, Respondent’s trust account was seized to satisfy his $2,000 debt; both before and after the seizure, Respondent admittedly withdrew funds from the account for his living expenses. Finally, Respondent was retained in March of 1981 to file a bankruptcy petition in his client’s behalf, and in connection therewith was paid an advance fee of $300.00. He did not perform the work for which he was hired and failed to communicate with his client or to return the fee.

In mitigation of the above misconduct, Respondent introduced evidence of emotional disturbance on his part during the times involved. His condition apparently was the product of a combination of difficult circumstances, the most severe of which was the 1978 shooting murder of his father-in-law by his mother-in-law, followed by his participation in the defense of his mother-in-law and her moving into the respondent’s home. In 1979, respondent’s wife quit her full time job, leaving Respondent as the sole supporter for the family, and in early 1980 the couple had their second child. Respondent received brief psychiatric treatment in late 1980, and has been undergoing continuing therapy since December of 1982. Dr. Wickett, whom Respondent consulted in 1980, diagnosed his condition as severe depression, and Dr. Seastrunk, who has been treating Respondent more recently, diagnosed his condition as major depression. Both witnesses noted a decreased ability to concentrate, and Dr. Seastrunk testified that this sort of depression affects judgment. The testimony further indicates that Respondent has been rehabilitated by the treatment to the extent that he is now capable of conducting a practice in a responsible and professional manner.

We also note the Commissioner’s finding that Respondent has reimbursed each of his clients. While that action does not obviate the need for disciplinary action, it is a proper factor to consider in mitigation of his misconduct, as is the lack of any prior disciplinary action taken against him. Louisiana State Bar Ass’n v. Philips, 363 So.2d 667 (La.1978); Louisiana State Bar Ass’n v. Weysham, 307 So.2d 336 (La.1975); Louisiana State Bar Ass’n v. Levy, 292 So.2d 492 (La.1974).

The purpose of lawyer disciplinary proceedings is to protect the public and the administration of justice, and to maintain the high standards of professional conduct embodied in the Code of Professional Responsibility. Louisiana State Bar Ass’n v. Heymann, 405 So.2d 826 (La.1981); Louisiana State Bar Ass’n v. Quaid, 368 So.2d 1043 (La.1979); Louisiana State Bar Ass’n v. McSween, 347 So.2d 1118 (La.1977). The discipline to be imposed in a particular case will depend upon the seriousness and circumstances of the offense, fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Heymann, supra at 829; Louisiana State Bar Ass’n v. Bensabat, 378 So.2d 380 (La.1979).

The Commissioner recommended that Respondent be suspended for a period of six months, based on his conclusion that the involved misconduct is too serious for a mere reprimand, although the mitigating considerations make appropriate a shorter period of suspension than might otherwise be imposed. We agree with the Commissioner’s reasoning and recommendations.

Accordingly, Respondent Larre’ is suspended from the practice of law for six months, effective with the finality of this judgment.


text:
    STATE of Louisiana v. James P. TOMLINSON, III.
    No. 84-K-0974.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      Thomas W. Davenport, Jr., Monroe, for applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Earl Cox, Asst. Dist. Atty., for respondent.
   DENNIS, Justice.

The defendant, James P. Tomlinson, III, was charged by bill of information with committing forgery in violation of La.R.S. 14:72 by issuing or transferring an instrument which he knew to be forged. The defendant was convicted following a nonju-ry trial and sentenced to five years at hard labor. On appeal to the Court of Appeal for the Second Circuit the conviction and sentence were affirmed. State v. Tomlinson, 450 So.2d 380 (La.App. 2d Cir.1984). We granted the defendant’s application for a writ of certiorari in order to review the sufficiency of the evidence supporting his conviction. Having done so, we now reverse the defendant’s conviction.

Under the well-known due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), when sufficiency of the evidence is in question, the critical inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., 443 U.S. at 320, 99 S.Ct. at 2789.

In the present case the defendant is charged with committing forgery in violation of La.R.S. 14:72, which provides as follows:

§ 72. Forgery.
Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.
Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.

Thus, forgery may be committed by acting with an intent to defraud to either (1) make or alter a signature or another part of an instrument, or (2) issue or transfer an instrument known to be forged. In either instance the state must also prove a general intent to defraud. State v. Raymo, 419 So.2d 858 (La.1982). See La.R.S. 14:10(2). The intent must be to injure or prejudice the rights of another, but neither actual injury or prejudice to the particular person intended to be defrauded need be shown. State v. Raymo, supra.

The state sought to prove in this case that the defendant committed forgery by transferring an instrument known to him to be forged. The trial court found that the state had successfully carried its burden of proving beyond a reasonable doubt that the defendant knew the instrument transferred by the defendant bore a forged endorsement. The court of appeal held that the trial court’s finding was sufficiently supported by the evidence. We conclude that our trial and appellate brethren fell into error.

Paula Banks, an employee of the savings and loan bank where the defendant had an account, testified that as she arrived for work on the morning of March 12, 1982, she encountered the defendant in the bank’s parking lot. The defendant ascertained that Ms. Banks worked at the bank and asked her to make a deposit for him since he could not wait for the bank to open. Ms. Banks assented, and the defendant filled out a deposit slip and gave it and some other items to her. She took the deposit slip and the items inside and gave them to Ployce Jackson, another bank employee, so that Ms. Jackson could make the deposit.

Ms. Jackson testified that she had seen the defendant, whom she recognized as a bank customer, with Ms. Banks in the parking lot and that she received the defendant’s deposit from Ms. Banks. According to Ms. Jackson the deposit consisted of $231.00 in cash, a government check for $164.00, and a second check for $56.56 from Donald Brown payable to the defendant. The $164.00 check is the basis of the charge against the defendant.

The check, a copy of which is in the record, was a state unemployment check payable to “Gary L. Ellis” of 106 Brooks Lane, West Monroe. The check was endorsed on the back with the signature “Gary Brooks Ellis.” A social security number which matched the typed social security number on the front of the check was handwritten beneath the endorsement on the back. Also on the back of the check is a handwritten number preceded by the letters “DL” but which did not match the driver’s license number of anyone who could be involved in this case. Lastly, the words “for deposit” and the defendant’s account number were placed on the back of the check by Ms. Jackson. The payee on the check, Gary L. Ellis, testified that he never received his unemployment check for that month, that the signature on the back of the check was not his, and that he did not authorize anyone to endorse the check for him. Ms. Jackson further testified that she deposited the checks and the cash to the defendant’s account. Ms. Jackson also indicated that although the defendant’s endorsement may have been required if he had cashed the check, it was only necessary to make the notation “for deposit only” on the back of the check because the check was deposited without a return of cash to the customer.

The results of the handwriting analyses by the Northwest Louisiana Criminalistics Laboratory were stipulated to by the defense and the prosecution. The handwriting experts examined the check, the deposit slip, a handwriting sample from the defendant, and a handwriting sample from Gary L. Ellis. The experts concluded that from these items neither the endorser of the check, nor the person who filled out the deposit slip could be identified. However, they stated that the endorsement was “disguised writing.” They also stated that Gary L. Ellis was not the endorser. Finally, the experts said that there were “similarities” between the defendant’s handwriting, the writing on the deposit slip, and the endorsement on the back of the check.

The drawer of the check for $56.56 which was deposited by the defendant was Donald Brown. Mr. Brown identified the defendant and stated that the defendant operated a garage. Mr. Brown testified that the defendant was doing business in his own name. The check Mr. Brown wrote to the defendant was for repairs the defendant had made on Mr. Brown’s car at the garage.

The only other significant evidence offered was that the defendant had moved to Kansas in April after depositing the unemployment check in March. The defense called no witnesses and the defendant himself did not testify. Of course, the fact that the defendant did not testify cannot be used against him.

From the evidence presented it is clear that the endorsement on the unemployment cheek was forged and that the defendant transferred the check intending that it be deposited to his account. The key issue, however, is whether there is enough evidence for a reasonable juror to conclude beyond a reasonable doubt that the defendant knew that the endorsement was forged and acted with an intent to defraud. That the defendant knew that the instrument was forged was an essential element of the type of forgery of which the state sought to prove. La.R.S. 14:72. Without such knowledge defendant’s intent to defraud would have been lacking as well. The court of appeal correctly stated that mere possession of a forged writing does not prove beyond a reasonable doubt that the possessor has knowledge of the forgery and intent to defraud. State v. Tomlinson, supra, 450 So.2d at 383; See also State v. Goiner, 410 So.2d 1085 (La.1982); State v. Brown, 352 So.2d 690 (La.1977). Thus, the state was required to present other evidence which proved the defendant’s knowledge of the forgery.

In concluding that there was enough evidence to support a finding that the defendant knew the endorsement was forged the court of appeals relied primarily on the discrepancy between the name of the payee and the name signed by the endorser. The name of the payee was “Gary L. Ellis” but the endorsement read “Gary Brooks Ellis.” The court concluded that this discrepancy was sufficient to put a reasonable person on notice that the endorsement was forged. State v. Tomlinson, supra, 450 So.2d at 384. We disagree. First, and most significantly is the fact that the name discrepancy was not noticed by either of the two bank employees who handled the check and who testified at the trial. In fact, it appears that the forgery was not discovered by any bank employee, but was instead discovered when Gary L. Ellis reported that his unemployment check had not been delivered. If knowledgeable bank employees who examine checks and other items daily to see if they are properly endorsed and completed did not notice the name discrepancy, the defendant certainly could not be expected to notice it. Secondly, the name of the street on which Gary L. Ellis lived, “Brooks Ln” and was typed directly beneath “Ellis, Gary L.” on the front of the check such that someone glancing at the front and then the back of the check might easily but mistakenly assume that “Gary Brooks Ellis” on the back was the endorsement of the named payee. Finally, as a matter of negotiable instruments law the name discrepancy does not necessarily mean that the endorsement is improper. La.R.S. 10:3-203 states:

§ 3-203. Wrong or misspelled name Where an instrument is made payable to a person under a misspelled name or one other than his own he may endorse in that name or his own or both; but signature in both names may be required by a person paying or giving value for the instrument. (Emphasis added.)

Thus, even assuming that the defendant was well versed in negotiable instruments law and that he noticed the name discrepancy, the defendant could not have been certain that the endorsement was forged. Considering only the check and La.R.S. 10:3-203, a reasonable explanation of the name discrepancy could be that “Gary L. Ellis” was a mistaken designation of Gary Brooks Ellis who then endorsed the check in his own name as contemplated by the first part of the statute. Under the statute it is not mandatory that the name of the endorser be the same as that of the payee. For all of the above reasons the name discrepancy adds little or nothing to the state’s effort to prove that the defendant knew or reasonably should have known that the endorsement was forged.

The other argument relied upon by the state and the court of appeal is that the totality of the evidence is sufficient to support the conviction. In addition to the name discrepancy the appellate court points out that there are “some similarities” between the defendant’s signature and the endorsement. Further, it is added that Ms. Banks saw the defendant fill out the deposit slip. The state adds that the defendant’s failure to place his own endorsement on the check, the unusual method in which the deposit was made, and the defendant’s move to Kansas a month later, are facts which when considered together evidence the defendant’s desire to avoid detection and thus his guilty knowledge.

We find the totality of the circumstances argument unpersuasive. The state’s argument that there is evidence that the defendant tried to avoid detection is undermined by the fact that the defendant openly deposited the money into his own account. Furthermore, the existence of “some similarities” between the defendant’s signature and the endorsement is not sufficient evidence for any reasonable juror to find beyond a reasonable doubt that the defendant forged the endorsement or that he knew that it was forged, especially when the experts stated that the defendant could not be identified as the endorser. Finally, the fact that the defendant apparently filled out the deposit slip does not show that he forged the endorsement or that he knew that it was forged since the experts did not state that the person who wrote the deposit slip also wrote the endorsement and since they stated the endorsement was “disguised writing” but made no such conclusion about the deposit slip.

Beyond the above outlined weaknesses of the evidence against the defendant is the fact that the most reasonable hypothesis of what actually happened is consistent with defendant’s innocence. According to Mr. Brown the defendant operated a garage in his own name and the payments for services went directly to him. The deposit of two checks and a substantial amount of cash to the defendant’s own account when one of the checks was established to be the proceeds of repair work at the garage suggests that the entire deposit was of proceeds from the garage and was made in the regular course of business. Pursuing this theory further, it is entirely possible that the defendant accepted the endorsed unemployment check as payment for repair work. Once endorsed the check became bearer paper and was negotiable by delivery alone. Thus, the check could have been given by a third person to the defendant in payment for repair services without arousing the defendant’s suspicion. The acceptance of an endorsed check as payment is even more likely when the apparently small scale of the defendant’s garage operation is taken into account. This explanation of the defendant’s possession and deposit of the cheek is at least as reasonable, if not more so, as the state’s argument that the defendant knew the endorsement was forged.

After viewing the evidence in the light most favorable to the prosecution, we do not believe that a rational trier of fact could have found all of the essential elements of the crime beyond a reasonable doubt. The conviction of the defendant is reversed and the ease is remanded to the trial court for the entrance of a judgment of acquittal.

WATSON, J., dissents believing the totality of the circumstances to be sufficient to sustain the conviction.


author: BLANCHE, Justice. WATSON, J., DENNIS, Justice,

text:
    SOUTH ARKANSAS VACUUM SERVICE OF LOUISIANA, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 84-CA-0831.
    Supreme Court of Louisiana.
    Oct. 15, 1984.

      Janet Boles Chambers, Monroe, for plaintiff-appellant.
    Marshall B. Brinkley, General Counsel, Louisiana Public Service Commission, Baton Rouge, for defendant-appellee.
   BLANCHE, Justice.

This case involves the Louisiana Public Service Commission’s grant of a certificate of public convenience and necessity to Henry C. McLain, d/b/a McLain Trucking Company, authorizing the transportation of liquid muds, KCL water, calcium chloride, calcium bromide, fresh water and salt water used in the drilling, completion, production and workover of oil and/or gas wells. The permit also allows the transportation of any waste material derived from the above operations to disposal systems, over irregular routes within a radial area of one hundred (100) miles from Minden, Louisiana.

The only issue before the court is whether the issuance of the permit by the Commission to the applicant was in the public’s interest.

The Commission found that in view of the evidence present in the record, the public convenience and necessity required and would be materially promoted by the granting of the certificate sought.

The district court for the 19th Judicial District, Parish of East Baton Rouge, affirmed the decision of the Louisiana Public Service Commission by judgment with written reasons. The court contended that the sole issue was whether it was shown at the hearing that the public convenience and necessity would be materially promoted by the granting of McLain’s application for a certificate. They based their decision to grant McLain’s application on the following findings of fact: (1) that the testimony at the hearing showed McLain was worthy of certification since he had been involved in the “trucking” or “carrier” business since 1969 and that at the time of the hearing, he had been in the vacuum truck business for more than 18 months by means of a leasing arrangement with another certified carrier. Pursuant to this type of arrangement, McLain was operating at least three trucks; and (2) that the testimony presented by Sam L. Mobley and Robert M. Scog-gins, applicant’s two shipper witnesses, stood unrefuted in showing McLain had performed excellent work for them and had a good reputation among his customers; and (3) that since orders of the Public Service Commission, with respect to the issuance of certificates of public convenience and necessity, are accorded great weight, then the commission could have reasonably concluded that public convenience and necessity would be materially promoted by the granting of the application.

Petitioners appealed to this court pursuant to La. Const. Art. 4, § 21(E).

On appeal to this court, petitioners contend that the district court erred by failing to apply the correct standard of judicial review in ascertaining whether public convenience and necessity would be materially promoted.

The applicable law in this case requires a consideration of La.R.S. 45:164 which states in part that “no new or additional certificates shall be granted over a route where there is an existing certificate unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.”

This court stated in Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972), that:

“The principles are well settled for judicial review of Commission orders granting certificates of public convenience and necessity under this provision. The applicant has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of a certificate to it.”

The orders of the Commission are to be accorded great weight and will not be overturned absent a showing that the administrative action was arbitrary and capricious. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commis sion, 247 La. 826, 174 So.2d 644 (1965); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265 (1981).

“A ruling of the Commission may not be deemed arbitrary unless it is shown that it is not supported by some factual evidence.”

Beauregard Electric Cooperative, Inc. v. Louisiana Public Service Commission, 378 So.2d 404 (La.1979); B & M Trucking, Inc. v. Louisiana Public Service Commission, 353 So.2d 1323 (La.1977); Truck Service, Inc. v. Louisiana Public Service Commission, supra. But even a showing of “only” some evidence will not save the Commission’s order from arbitrariness when that evidence does not and could not reasonably support the Commission’s findings. In other words, upon judicial review a court will not upset orders such as the one considered here unless after reviewing the evidence it concludes that the Commission could not have reasonably concluded that there had been a clear showing that the public convenience and necessity would be materially promoted thereby, and that the Commission’s action was therefore arbitrary and capricious and a clear abuse of its power. B & M Trucking, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra.

Public convenience and necessity are not susceptible of precise definition. Rather, what constitutes public convenience must be determined on a case by ease basis. Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983).

Similarly, as stated in M & G Fleet Service, Inc. v. Louisiana Public Service Commission, 443 So.2d 574 (La.1984):

“This court has often pointed out that a commission determination cannot be set aside for lack of evidence if there is sufficient evidence in the record from which a reasonable person could have made that finding.”

It is therefore necessary to examine the sufficiency of the evidence presented by the applicant. The record reflects that McLain presented two shipper witnesses in support of his application. The first was Sam L. Mobley, field supervisor for O.B. Mobley Oil Company. He testified that his area of supervision was from Plain Dealing to Simsboro to Elm Grove. Mr. Mobley specifically was charged with the responsibility of seeing after the drilling rigs and workover rigs and also in charge of production. He had been in the business for 30 years; and was especially familiar with the oil and gas related business of North Louisiana. When asked if he had any dealings with vacuum service companies, he answered yes, but not too often lately, because things had slowed down. While he did state that McLain had done excellent work hauling under his lease arrangement, he stated that the last time his business need necessitated a vacuum truck was around Christmas; over three months ago. On cross examination, Mr. Mobley was asked whether he had used any of the already certificated carriers in the area. Of the nine carriers that were available for his potential use, he admitted having used only five. All of these carriers are certificated and domiciled within the 100 mile locale for which McLain is seeking authority. When asked if at the present time there was a surplus of trucks in North Louisiana, he replied “Right, surplus of a lot, rigs, the whole works.”.

The second supporting shipper was Robert M. Scoggins, owner of Petroleum Engineering Services Company in Shreveport. He stated that his company performed any services to do with the drilling, completions, workovers, and operations in the oil and gas business in North Louisiana, South Arkansas and East Texas. He has been dealing with vacuum service companies since 1964. Mr. Scoggins stated that he had known McLain for the past six years and that McLain’s work was satisfactory. When asked how many times he had used vacuum trucks for work within a 100 mile area of Minden over the last six months, he replied about 7, 8 or 10 times. He was asked if he had any trouble locating vacuum trucks within the past year and he stated that he had not. He was asked whether his business was down and if so, did that result in his business using less vacuum trucks than the year preceding. He replied affirmatively to both questions.

Ten certificated vacuum truck carriers were present in opposition to this application. Four of those present at the hearing are domiciled in North Louisiana in close proximity to applicant’s domicile. Jackie D. Bryan testified for South Arkansas Vacuum. Mr. Bryan stated they worked in an area delineated by a line drawn east and west through Alexandria from the Mississippi line to the Texas state line and bounded on the North by the Arkansas line. They had terminals in Springhill, Louisiana and Ruston, Louisiana. His company’s authority was for complete vacuum service. South Arkansas Vacuum had done business with both of the applicant’s witnesses. When asked whether he had any idle equipment he responded yes, about 40% to 50% idle. He stated that he currently needed a lot more business and that his revenues were down due to the lack of business. Bryan had laid off approximately 10 people in the last eight months. He further testified that granting McLain a license would change the competitive status of his company in North Louisiana, especially in the hauling of salt water. Specifically, he stated that certificating McLain would be adding another service to the North Louisiana area which was not needed, strictly on the salt water hauling basis.

Ronnie McWilliams also testified for Garrett Oilfield Services in opposition to McLain’s certificate. Their legal license was a 100 mile radius of Haynesville, Louisiana. He stated that his company had approximately 45% idle equipment. Three men had. been recently laid off and the number of drivers reduced due to “economics”. He also stated that new business was needed and revenues were down for Garrett.

The testimony from Connie Perry, representing Bob Young Vacuum Service was similar to the above two protestants.

Also, Raymond Thompson from Wilson Well Service testified that business was down and he had idle equipment.

All of the North Louisiana carriers testified that they had adequate equipment to meet the needs of these supporting shippers.

McLain himself testified that his business (leasing) was probably a third of what it was “due to the general slow down of the oilfield in that area.” When asked if there was a surplus of vacuum trucks, he replied “Right now, I’m sure there is.”

These governing principles were well stated in Gulf Coast Pre-Mix Trucking, Inc., et al v. Louisiana Public Service Commission, 336 So.2d 849 (La.1976):

“In these circumstances the major requirement is that the applicant demonstrate that his proposal is responsive to public demand left unsatisfied by existing authorized carriers. This is customarily and as a matter of practice accomplished through public shipper testimony establishing facts which meet this burden of proof. Generalities do not suffice. Existing carriers have the right to transport all the traffic that they can handle adequately, efficiently, and economically in the territories they serve without the added competition of a new operation. The public is ultimately the loser as the result of unnecessary duplication of utility or transport facilities. Reduction in income and revenues of existing carriers causes the inevitable reduction of service and schedules.”

This opinion involves a detailed reference to the evidence because of the court’s reluctance to overturn findings of the Commission. Although the applicant presented two witnesses in support of its application; these witnesses did not refute the fact that the existing certificated carriers provided adequate services or that their services dipped below the standard reasonably required for public convenience and necessity. As a matter of fact, their testimony basically amounted to a testimonial that the applicant had provided adequate service during the eighteen month period of his lease contract and that he would continue to provide similar service if certificated by the Commission. This is not a sufficient factual basis from which a reasonable fact finder could determine that the public convenience and necessity would be materially promoted by issuance of a certificate.

There is also other detrimental evidence. There was evidence suggesting a slow down in the oil and gas industry in North Louisiana which is a direct correlation to the issue of need for additional trucking service. Opposition witnesses also testified further that existing authorizing carriers had an abundance of trucks available in the area idle and that only about 50% were being utilized at the present time.

Having concluded that there is no factual basis for the finding that the public convenience and necessity would be materially promoted by the issuance of applicant’s certificate by the Commission, we find that the issuance of the certificate was arbitrary and capricious.

DECREE

For the reasons set forth in the foregoing, we reverse the ruling of the district court and the order of the Commission granting relator’s certificate of public convenience and necessity is set aside.

REVERSED.

DENNIS, J., concurs with reasons.

CALOGERO, J., dissents.

WATSON, J.,

dissents being of the opinion that this court should not substitute its judgment for that of the LPSC, especially when affirmed by the District Court.

DENNIS, Justice,

concurring.

I respectfully concur.

In M & G Fleet Service, Inc. v. Louisiana Public Service Commission, 443 So.2d 574 (La.1983), this court expressly disapproved of “some evidence” or “no evidence” rules with respect to whether these findings of the commission should be reversed. To the extent that the majority opinion implies a perpetuation of those rules I disagree with the opinion. Otherwise, I am in agreement with the majority opinion.

      . § 164. Common carrier’s certificate; contract carrier’s permit:
      No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.
      No motor carrier shall operate as a contract carrier without having had a public hearing and obtained from the commission a permit to do so, which permit shall not be issued unless in the public interest and until the applicant shall have complied with the requirements of R.S. 45:161 through R.S. 45:172.

      . The application was approved by a three-one-one vote conditioned upon grantee’s compliance with the laws, rules and regulations of the Commission as applicable.

      . Under the law, it is possible for a person to lease equipment to a certificated carrier and thereby engage in common carriage without himself personally holding a common carrier certificate authorizing the same. Typically, such arrangements call for a lease payment to the certificate holder based on a percentage of revenue from each haul, although the certificate holder provides no equipment or in-the-field service.

      . (E) Appeals. Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.