author: WEIMER, J.

text:
    In re Roy A. RASPANTI.
    No. 2008-B-0954.
    Supreme Court of Louisiana.
    March 17, 2009.
    Rehearing Denied May 22, 2009.

      Charles Bennet Plattsmier, Baton Rouge, for applicant.
    John Anthony Occhipinti, Roy Anthony Raspanti, Metairie, Douglas Michael Schmidt, New Orleans, for respondent.
   ATTORNEY DISCIPLINARY

WEIMER, J.

| ]This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (ODC) against attorney Roy A. Raspanti (Respondent). The charges alleged, in part, that he filed a defamation suit against a former client based on a complaint she filed with the ODC. The ODC asserted Respondent’s actions violated Section 12 of Louisiana Supreme Court Rule XIX (Rule XIX), which provides, in part, that communications to the disciplinary board, the hearing committee, and the ODC “shall be absolutely privileged” and that “no lawsuit predicated thereon may be instituted against any complainant or witness.”

Both the hearing committee and the disciplinary board found Respondent’s conduct violated Rules 3.1, 8.4(a), and 8.4(d) of the Rules of Professional Conduct. Furthermore, the hearing committee determined Respondent violated the “spirit” of Rule XIX, § 12(A), and the disciplinary board found his conduct was in “direct violation” of that provision.

Because this court has never specifically addressed the effect of Section 12(A), we docketed the matter on our own motion in order to address the legal issue raised 12herein; whether an attorney’s violation of Rule XIX, § 12(A) can be the basis for discipline and the imposition of sanctions.

FACTS

The following facts are undisputed and supported by the record. Thus, if we agree with the committee’s and the board’s resolution of the legal issue, the ODC will have met its burden of proof by clear and convincing evidence.

Over the years, Respondent has represented his sister, Janine Raspanti, in various civil matters, at the urging of his parents. In 1994, Ms. Raspanti filed the first of several disciplinary complaints against Respondent with the ODC; she alleged that Respondent had engaged in unethical conduct in representing her in two civil suits for damages. For the most part, her complaints stemmed from disputes between herself and Respondent concerning the payment of legal fees. In each instance, the ODC found no clear and convincing evidence of ethical misconduct by Respondent and dismissed the complaint. As is the right of every complainant under the provisions of Rule XIX, Ms. Raspanti appealed the dismissal of each of her complaints to a hearing committee, to the disciplinary board, and to this court. Again, in each instance, the ODC’s decision to dismiss the complaint against Respondent was affirmed.

Ms. Raspanti’s second complaint was filed in 1997. According to Respondent, Ms. Raspanti alleged he had engaged in a “dishonest, fraudulent and deceitful misrepresentation” and that he engaged in document concealment, was “exploitive” |,^and breached “his ethics.” The ODC determined that Ms. Raspanti’s “new” complaint was meritless, did not require a response from Respondent, and warranted dismissal without further investigation. Unfortunately, due to an oversight, the ODC did not notify Respondent of the 1997 complaint. Respondent avers he would not have undertaken a subsequent representation of his sister in 1999 had he known of her second complaint in 1997. During the years, Respondent obtained judgments in favor of his sister, but the disputes over fees continued.

Ms. Raspanti filed her third complaint with the ODC in December of 2001. In March and April of 2002, she made five communications to the ODC, in which she restated her continuing dissatisfaction with Respondent. Again, the ODC responded by dismissing her complaints.

In January 2003, Respondent filed a lawsuit against Ms. Raspanti for breach of contract and defamation. The third cause of action contained in Respondent’s petition specifically asserted defamation by Ms. Raspanti because of the complaints she had filed against him with the ODC. In response to the petition, Ms. Raspanti asserted the defense of immunity pursuant to Rule XIX, § 12(A). Respondent opposed the exception, arguing that, at a minimum, Ms. Raspanti was not immune from liability for defamatory statements she made in her complainant appeals filed in this court, a body which is not specifically listed in Rule XIX, § 12(A).

Following a mediation effort in early 2004, the attorney for Ms. Raspanti’s insurer sent a letter to the other parties and their counsel stating, in part:

Both parties agree to execute a Release Agreement which will prevent them from ever bringing any further disciplinary complaints or lawsuits |4arising out of or in any way connected with Roy’s representation of Janine over the past ten years. Roy will receive payment of $3,000.00. Janine will agree that if she ‘defames Roy in the future, and he successfully prosecutes to final judgment a claim for that defamation, Janine will pay him, in addition to the actual damage award, a penalty of $15,000 plus reasonable attorney’s fees.

Thereafter, Respondent forwarded to Ms. Raspanti’s attorneys a two-page settlement proposal which contained the essence of the above statement. Respondent also proposed that: “In the event that Roy Raspanti ever obtains a final collectible judgment against Janine M. Raspanti for libel, slander, or defamation, for any incidents occurring after the date of this agreement, Janine M. Raspanti agrees to pay Roy Raspanti, in addition to the actual damage award, an additional penalty of $15,000 plus reasonable attorney’s fees and costs.” Ms. Raspanti did not agree to Respondent’s settlement proposal, and Respondent’s lawsuit against her remains pending at this time.

DISCIPLINARY PROCEEDINGS

On December 19, 2006, the ODC filed one count of formal charges against Respondent, alleging that his conduct as set forth above violated Rule XIX, § 12(A) as well as the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent answered the formal charges and denied any misconduct.

\ ¡formal Hearing:

This matter proceeded to a formal hearing on May 15, 2007. Respondent appeared at the hearing and was represented by counsel. The committee received documentary evidence from both Respondent and the ODC. The ODC called attorney Thomas Buck to testify in person before the hearing committee. Mr. Buck represented Janine Raspanti and her homeowner’s insurer in connection with the defamation and breach of contract lawsuit filed against her by Respondent.

Respondent testified on his own behalf and on cross-examination by the ODC. In his testimony, Respondent stated that he agreed to represent Ms. Raspanti at the urging of their parents. According to Respondent, Ms. Raspanti filed disciplinary complaints against him whenever she did not want to pay him his fee. He filed a lawsuit against her because he believed he had a cause of action for defamation. However, he amended the lawsuit to remove the defamation cause of action based on Ms. Raspanti’s disciplinary complaints and her complainant appeals to the ODC, hearing committees, and disciplinary board, but kept the defamation cause of action based upon her complainant appeals to this court. He also added the causes of action of abuse of process and malicious prosecution based on Goldstein v. Serio, 496 So.2d 412 (La.App. 4 Cir.1986), writs denied, 501 So.2d 208, 209 (La.1987), and Sommer v. State, Department of Transportation and Development, 97-1929 (La. App. 4 Cir. 8/29/00), 758 So.2d 923, writ denied, 00-1759 (10/27/00), 772 So.2d 122. Respondent also stated that he sent the proposed settlement agreement to Mr. Buck in response to Mr. Buck’s February 12, 2004 letter, which summarized Mr. Buck’s view of the settlement reached during the mediation. He testified that he did not think any of the provisions were going to be enforceable, but the judge and the | (¡mediator were strongly urging the parties to come to some sort of agreement. Therefore, he responded in good faith with his proposed settlement agreement.

Hearing Committee Report:

After considering the evidence and testimony presented at the hearing, the committee made the following findings.

Respondent filed a lawsuit against Ms. Raspanti that alleged a claim for defamation based upon various disciplinary complaints Ms. Raspanti had filed with the ODC and appeals to the hearing committee and disciplinary board, which claim is precluded by Rule XIX, § 12(A) and, therefore, is a non-meritorious action. Mr. Buck wrote to Respondent’s attorney, raising the issue of Rule XIX, § 12(A) and requesting a dismissal of the defamation claim. Respondent amended the lawsuit but did not remove the defamation claim entirely. The third cause of action listed communications to the ODC and there was no clear delineation that the cause of action was based only on defamation in the Fifth Circuit Court of Appeals, United States District Court, and the Louisiana Supreme Court. On December 9, 2003, the trial court dismissed the defamation claim. Respondent’s reliance on Goldstein is misplaced because the court of appeal based its decision on the Louisiana State Bar Association’s Articles of Incorporation, Article XV, § 13 (repealed), which does not appear to specifically provide an absolute preclusion of suit based upon communications to the disciplinary board as is contained in Rule XIX, § 12(A). Respondent’s reliance on Sommer is also misplaced because Sommer does not interpret Rule XIX, § 12(A). Respondent wrote to Mr. Buck on March 9, 2004, and proposed a settlement agreement that included monetary penalties against Ms. Raspanti if she filed future disciplinary complaints against him. If executed, the |7agreement would have had a “chilling effect” on the filing of such complaints in the future.

Based on these findings, the committee determined that Respondent violated the spirit of Rule XIX, § 12(A) and also violated Rules 3.1, 8.4(a), and 8.4(d) of the Rules of Professional Conduct. The committee also determined that Ms. Raspanti suffered no direct harm. The only aggravating factor found by the committee was Respondent’s refusal to acknowledge the wrongful nature of the conduct.

The committee further found that Ms. Raspanti filed at least two non-meritorious complaints against Respondent, and Respondent only represented her at the insistence of their parents. The committee indicated it appreciated Respondent’s frustration with his sister and expressed sympathy with his plight, but stated that “we have no choice but to recognize the violation and recommend a sanction.” Accordingly, the committee recommended that Respondent be publicly reprimanded.

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

Disciplinary Board Recommendation:

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board found Respondent’s conduct violated Rules 3.1, 8.4(a), and 8.4(d) of the Rules of Professional Conduct. Furthermore, the board determined Respondent engaged in conduct that was in direct violation of Rule XIX, § 12(A).

Regarding Respondent’s reliance on Goldstein, the board noted that the Gold-stein decision was rendered prior to the promulgation of Rule XIX, § 12(A), which became effective April 1, 1990. Regarding Respondent’s reliance on Sommer, |sthe board agreed with the committee that Sommer does not address Rule XIX, § 12(A).

The board determined that Respondent knowingly violated duties owed to the legal system and to Ms. Raspanti. He caused harm to Ms. Raspanti in that she was forced to defend the defamation claims. Furthermore, Respondent’s retaliatory action threatens to undermine the disciplinary system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found the following factors: refusal to acknowledge the wrongful nature of the conduct, lack of remorse, substantial experience in the practice of law (since 1975), and indifference to making restitution or minimizing the harmful effects of the misconduct. The only mitigating factor found by the board is the absence of a prior disciplinary record.

Considering the above, the board recommended that Respondent be suspended for one year with all but three months deferred. The board further recommended that Respondent be placed on unsupervised probation for nine months following the active period of the suspension, subject to the condition that any misconduct during this period may be grounds for making the deferred suspension executory or imposing additional discipline, as appropriate. Finally, the board recommended that Respondent be assessed with all costs and expenses of these proceedings.

DISCUSSION

The United States Supreme court has characterized attorney disciplinary proceedings as quasi-criminal in nature. In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968). Rule XIX, § 18(A), states that “[disciplinary proceedings are neither civil nor criminal but are sui generis.”

| ¡).Louisiana Supreme Court Rule XIX, § 12(A):

The core legal issue in this matter relates to the interpretation and effect of Rule XIX, § 12. Rule XIX is entitled “Rules for Lawyer Disciplinary Enforcement;” Section 12 is entitled “Immunity” and provides immunity from civil suits and criminal prosecutions. Specifically, this court is called upon to decide whether a violation of Rule XIX, § 12(A) can be the basis for discipline and the imposition of sanctions.

Rule XIX, § 9(a) states that it shall be ground for discipline for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, or any other rules of this jurisdiction regarding professional conduct of lawyers.” Clearly, Rule XIX, § 12(A) is not a provision of the Rules of Professional Conduct. See Louisiana State Bar Association (LSBA) Articles of Incorporation, Art. XVI, Rules of Professional Conduct, Rule 1.0, et seq. Thus, the sole question presented is whether Rule XIX, § 12(A) is one of the “other rules of this jurisdiction regarding professional conduct of lawyers.”

It will be helpful to consider these provisions in their historical perspective.

In the late 1980s, the Louisiana Supreme Court recognized that the state bar was experiencing an “ethics crisis.” Address by Chief Justice John A. Dixon, Press Conference (Feb. 6, 1990), cited in The New Louisiana Disciplinary Enforcement Rules v. The Old Rules: A Comparison, 36 Loy. L.Rev. 433 (1990). With a significant increase in this state’s lawyer population, the number and complexity of complaints had increased, overburdening the then existing disciplinary system. This court requested that the American Bar Association (ABA) Standing Committee on Professional Discipline evaluate Louisiana’s disciplinary enforcement procedures. Id. at 438. An ABA team came to Louisiana and conducted the evaluation, and | thereafter issued a report, “Professional Discipline for Lawyers and Judges,” on the areas of Louisiana’s system that the team concluded were in need of revision. After the submission of the report in July of 1987, this court appointed a committee to review the ABA’s findings. Id.

However, in 1989, while the local review was pending, the ABA adopted the Model Rules for Lawyer Disciplinary Enforcement. This court responded by discontinuing its own evaluation project and adopting and promulgating the ABA’s new model rules regarding disciplinary enforcement, La. S.Ct. Order (Feb. 6, 1990), making Louisiana the first state to use the new ABA Model Rules for Lawyer Disciplinary Enforcement. Id. at 433.

In 1990, Article XV, “Discipline and Disbarment of Members,” of the LSBA Articles of Incorporation was vacated and repealed. In its place, Louisiana Supreme Court Rule XIX was reenacted to incorporate the “Rules for Lawyer Disciplinary Enforcement.” The “Rules of Professional Conduct” remained and still are in Article XVI of the LSBA Articles of Incorporation. However, the reenacted Rule XIX |n changed the disciplinary procedure and the sanctions imposed for professional misconduct. Id. at 445. Additionally, there was a change in the provision related to a privilege for complaints to the disciplinary committee of the LSBA.

The previous “Privileges and Immunities” provision, Art. XV, § 13 provided, in pertinent part:

[1] Complaints filed with the Committee in accordance with these rules shall be absolutely privileged
and
[2] all communications and evidence predicated thereon shall not be admissible in any court in this State in proceedings against the person filing such complaints.

The replacement for Art. XV, § 13, Paragraph A of Section 12, of Rule XIX entitled “Immunity,” states, in pertinent part:

[1] Communications to the board, hearing committees, or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged,
and
[2] no lawsuit predicated thereon may be instituted against any complainant or witness.

Obviously, both provisions create an absolute privilege. However, Art. XV, § 13 implicitly recognized that complainants could be sued, whereas Rule XIX, § 12(A) prohibits such suits.

The key words in both provisions are “absolutely privileged.” A “privilege” as it relates to the law of libel and slander is defined as an “exemption from liability for the speaking or publishing of defamatory words concerning another, based on the fact that the statement was made in the performance of a duty, political, judicial, social, or personal.” Black’s Law DictionaRY, 1360(4th ed.1968). An “absolute | ^privilege” is defined as a “privilege that immunizes an actor from suit, no matter how wrongful the action might be, and even though it is done with an improper motive.” Black’s Law Dictionary, 1215 (7th ed.1999). Louisiana jurisprudence has consistently held that communications made in judicial or quasi-judicial proceedings carry an absolute privilege so that witnesses, bound by their oaths to tell the truth, may speak freely without fear of civil suits for damages. Knapper v. Connick, 96-0434, p. 3 (La.10/15/96), 681 So.2d 944, 946, citing Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969), overruled on other grounds, Gonzales v. Xerox Corporation, 254 La. 182, 320 So.2d 163 (1975). This court has recognized the difference between absolute immunity, which defeats a suit at the outset, and qualified immunity, which depends on circumstances and motivations and often must be established by evidence at trial. Knapper, 96-0434 at 6, 681 So.2d at 948.

The key words in the additional sentence of Rule XIX, § 12(A) — and no lawsuit predicated thereon may be instituted against any complainant or witness— are “instituted” and “no lawsuit.” In the context of this legal rule, the word “instituted” is defined as “to begin or start; commence.” Black’s Law DictionaRY, 801 (7th ed.1999). The words “no lawsuit” clearly foreclose the institution of any lawsuit whatsoever, regardless of the cause or causes of action pled therein. Thus, Respondent’s argument in the instant matter that Rule XIX, § 12(A), as applied by this court, leaves the door open for suits for malicious prosecution and/or abuse of process is untenable. It is absolutely clear that Rule XIX, § 12(A) prohibits all lawsuits predicated on the complaint or the testimony, and, thus, provides additional protection to complainants and witnesses that the former rule did not provide. The policy decision by this court to protect those who file complaints against lawyers from retaliatory lawsuits avoids a chilling effect upon the proper function of the |¡ .¡lawyer regulatory system. This provision is consistent with the overall purpose of Rule XIX to engender confidence by the public in Louisiana’s lawyer regulatory system.

The ABA “Commentary” regarding the portion of Rule 12 “Immunity” at issue in this case states, in pertinent part:

A policy of conferring absolute immunity ... encourages those who have some doubt about a lawyer’s conduct to submit the matter to the proper agency, where it may be examined and determined. Without immunity, some valid complaints will not be filed. The individual lawyer may suffer some hardship as the result of the occasional filing of a malicious complaint, but a profession that wants to retain the power to police its own members must be prepared to make some sacrifice to that cause.
It is unlikely that even a malicious complaint will cause any damage beyond some inconvenience. The members of the agency to whom the complaint is submitted will surely not hold it against the lawyer, for their very function is to separate meritorious from undeserving complaints.

Model Rules for Lawyer Disciplinary Enforcement, Rule 12: Immunity, Commentary (1993 ed.).

This Rule 12 Commentary explains and confirms the absolute privilege accorded to communications to the board, hearing committees, or disciplinary counsel and the immunity from civil suit accorded to complainants and witnesses. However, the Rule 12 Commentary does not address the issue in this case: whether an attorney is subject to discipline for filing suit against the complainant.

|14As previously stated, our decision is based on whether Section 12(A) can be considered among “other rules of this jurisdiction regarding professional conduct of lawyers” as provided in Rule XIX § 9(a). We find it disingenuous to assert otherwise. Admittedly, Section 12(A) does not mention lawyers. However, the provisions specify an absolute privilege for communications and a prohibition of the filing of civil suits against complainants and witnesses. Thus, the prohibition of Section 12(A) addresses itself to lawyers, who in most cases are the subjects of the privileged communications and who would be the ones to institute suits against complainants or witnesses. Thus, we conclude Rule XIX, § 12(A) is a “rule regarding professional conduct of lawyers” and makes lawyers susceptible to discipline for violation of its provisions.

Considering the facts as found by the hearing committee and the conclusions of the board, we agree that Respondent, by filing suit against a complainant for defamation not only violated the spirit of Rule XIX, § 12(A), but was in direct violation of its prohibitions, an action that subjects him to the disciplinary process. See Rule XIX, § 9(a).

In his defense to this court, Respondent argues that the Rules for Lawyer Disciplinary Enforcement cannot form the basis of misconduct or discipline. In support of this contention Respondent cites In re Harris, 03-0212, (La.5/9/03), 847 So.2d 1185. In that case, the ODC filed one count of formal charges alleging that respondent’s behavior in relation to a previous disciplinary proceeding (Harris I), had been in violation of a laundry list of rules; he allegedly “engaged in conduct | ^prejudicial to the administration of justice in violation of Rule 8.4(d); and, in bad faith, obstructed the disciplinary process in violation of Rules 8.1(c) and 8.4(g) and Supreme Court Rule XIX, § 12(A).” Harris, 03-0212 at 5, 847 So.2d at 1188.

In the instant case, Respondent relies on the following language: “[T]he board noted that [Supreme Court Rule XIX, § 12(A)] does not provide a disciplinary remedy. Accordingly, the board declined to find that respondent violated Rule XIX, § 12(A).” Harris, 03-0212 at 14, 847 So.2d at 1193-1194. Consideration of that statement in the context of the entirety of this court’s opinion reveals that Respondent’s reliance is misplaced. The statement was included in the “Disciplinary Board Recommendation.” Although this court did not specifically repudiate the statement by the board, it is clear from our “Discussion,” that violation of Rule XIX, § 12(A) played a significant part in our decision that permanent disbarment was the proper sanction. We stated:

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence....
The record supports a finding of professional misconduct that is unquestionably serious in nature. Respondent manufactured evidence and presented perjured testimony in an attempt to avoid lawyer discipline, and he threatened his former clients with civil litigation if either of them testified against him in the disciplinary proceeding. By engaging in these practices, respondent has violated the most fundamental duty of an officer of the court.
Having found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions....
Respondent’s conduct clearly violated duties owed to the public, the legal system, and the profession. In our view, respondent’s breach of ethics was profound and directly affected the lawyer disciplinary system and the administration of justice. [Citations omitted; emphasis supplied.]

Harris, 03-0212 at 15-16, 847 So.2d at 1194.

|UiIn the board’s recommendation to this court in the instant case, the board stated:

Respondent’s post-hoc rationalizations ignore the Section 12(A) proscription which provides that “no lawsuit predicated” upon any communications to the board, hearing committee or disciplinary counsel “may be instituted against any complainant or witness.” [Emphasis added.] Respondent’s defamation suit against Ms. Raspanti based upon her complaints to Disciplinary Counsel flies squarely in the face of the Section 12(A) prohibition.
Unlike Respondent, we cannot ignore the plain terms of Section 12(A). We believe the Supreme Court said what it meant and meant what it said in Section 12(A). That provision is essential to the effective functioning of the disciplinary process.

We agree with the board that violation of Rule XIX § 12(A) can subject an attorney to discipline and a finding of professional misconduct, which in turn supports the imposition of sanctions.

Rules of Professional Conduct:

We now consider whether Respondent can be sanctioned for his actions.

Rule 8 of the Rules of Professional Responsibility is entitled “Maintaining Integrity of the Profession,” and its five parts run the gamut of provisions regarding bar admissions and disciplinary matters to a provision outlining the jurisdiction of the disciplinary process.

Rule 8.4 is entitled “Misconduct” and provides a list of various acts that constitute professional misconduct. Rule 8.4’s definition of professional misconduct is a corollary of Rule XIX, § 10(A), which provides that misconduct shall be grounds for one or more of the sanctions listed therein. Rule 8.4 provides, in pertinent part:

It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(d) Engage in conduct that is prejudicial to the administration of justice.

|17We agree with the committee and the board that Respondent’s behavior breached Rule 3.1 of the Rules of Professional Conduct and, thus, constituted professional misconduct pursuant to Rule 8.4(a). Rule 3 of the Rules of Professional Conduct is entitled “Advocate” and sets forth the standards a lawyer must follow when he or she assists, defends, pleads, or prosecutes. Rule 8.1, which is the first of eight parts, is entitled “Meritorious Claims and Contentions”; it provides, in pertinent part:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

The hearing committee and the board concluded that Respondent’s civil suit against his former client, which asserted a claim of defamation arising from her complaints to the ODC, was frivolous in nature and violated Rule 8.1. Although Respondent’s suit was also a suit for the payment of legal fees and contained assertions of defamatory statements in venues other than disciplinary proceedings, Rule 3.1 clearly provides that an “issue” in a law suit must have a basis in law which is not frivolous. As a practicing attorney Respondent is charged with knowing the law, including the provision of Rule XIX § 12(A) that completely bars his filing a petition that alleges defamation by the complainant. That provision has been in place since 1990, more than a decade before Respondent filed his law suit.

A reasonable lawyer in Respondent’s position would have easily concluded that his defamation lawsuit against his former client predicated on her complaints to | i8the ODC was meritless. Because there existed a clear legal bar. to the filing of a suit for defamation predicated on Ms. Ras-panti’s complaints to the ODC, we agree with the committee and the board that Respondent’s suit was frivolous and violated Rule 3.1. We are not the first state to find that the filing of a civil suit in violation of absolute immunity afforded complainants is a frivolous action that violates Rule 3.1. See In re Spikes, 881 A.2d 1118, 1125 (D.C.2005); for violations of similar rules, see also, Conduct of Adams, 293 Or. 727, 739-740, 652 P.2d 787 (1982); Columbus Bar Association v. Elsass, 86 Ohio St.3d 195, 713 N.E.2d 421 (1999).

In arguing that his suit against Ms. Ras-panti was not frivolous Respondent relies on Goldstein v. Serio, 496 So.2d 412 (La. App. 4 Cir.1986), and Sommer v. State, Department of Transportation and Development, 97-1929 (La.App. 4 Cir. 3/29/00), 758 So.2d 923.

In Goldstein, attorneys filed a lawsuit against former clients after the Louisiana State Bar Association’s Committee on Professional Responsibility dismissed the former clients’ complaints against the attorneys. The lawsuit sought damages for defamation, malicious prosecution, and abuse of process. The trial court held that the complaints to the Louisiana State Bar Association were absolutely privileged and maintained the exception of no cause of action. The court of appeal affirmed the trial court’s ruling with respect to the defamation claim. However, it reversed the ruling with respect to the malicious prosecution and abuse of process claims, finding that absolute privilege is not an affirmative defense when “the crux of the action is not the | ^statements made but the fact that a proceeding was maliciously and/or illegally pursued.” Goldstein, 496 So.2d at 415.

In the instant case, the board noted that Respondent’s initial petition alleged defamation, but he subsequently added claims of abuse of process and malicious prosecution. The board noted that the ODC did not make an issue of these claims in its formal charges. Nevertheless, the board rejected the Goldstein argument, concluding that the “no lawsuit” prohibition contained in Section 12(A) is clearly broad enough to encompass suits for malicious prosecution as well as abuse of process. The board opined that in promulgating Section 12(A), this court could have concluded that providing a complainant or witness with an affirmative defense was insufficient protection since affirmative defenses must be pleaded, LSA-C.C.P. art. 1005, and can be waived. We agree with the board’s rejection of Respondent’s Goldstein argument.

Respondent also cites this court’s discussion of Goldstein in Marrogi v. Howard, 01-1106 (La.1/15/02), 805 So.2d 1118, a case involving the privilege of absolute immunity for witnesses in civil litigation. In explaining Goldstein, this court stated, “[T]he privilege applies to preserve candor in the attorney disciplinary system, yet complaints to the bar undertaken in malice or in abuse of process are not worthy of such protection.” Marrogi, 01-1106 at 13, 805 So.2d at 1127. However, as the disciplinary board now points out, Goldstein was decided on the basis of LSBA Articles of Incorporation, art. XV, § 13, which did not contain the “no lawsuit” clause now embodied in Section 12(A). The Marrogi opinion did not address Rule XIX, § 12(A), and it is clearly distinguishable from a case in the lawyer disciplinary system.

|2nBecause we have determined that Respondent’s action in filing a civil lawsuit against a complainant violated Rule 3.1, it follows that he engaged in professional misconduct pursuant to Rule 8.4(a) which states, “It is professional misconduct for a lawyer to ... violate the Rules of Professional Conduct.”

Finally, even if we were inclined to disagree with the hearing committee and the board concerning their conclusions that Respondent violated Rule 3.1 and, thus, engaged in professional misconduct pursuant to Rule 8.4(a), we conclude that the gravamen of the ODC’s formal charges against Respondent lies in misconduct pursuant to Rule 8.4(d), ie., conduct that is prejudicial to the administration of justice. Filing a lawsuit based on a cause of action which is specifically prohibited by Rule XIX, § 12(A) has a chilling effect on complaints against attorneys and is prejudicial to the administration of justice within the arena of attorney discipline.

In the instant case, where suit against a complainant was actually filed (as contrasted with a threatened lawsuit, as in Harris, supra) and continued (with various amendments) in violation of Rule XIX, § 12(A), we conclude that Respondent engaged in professional misconduct pursuant to Rule 8.4(d). Accord, In re Smith, 989 P.2d 165, 172 (Colo.10/4/99); Spikes, supra.

Louisiana Supreme Court Rule XIX, § 10. Sanctions:

Having found evidence of professional misconduct, we now consider the sole remaining issue, ie., the appropriate sanction for Respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Association v. Reis, 513 So.2d 1178 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any j21 aggravating and mitigating circumstances. Louisiana State Bar Association v. Whittington, 459 So.2d 520 (La.1984).

Rule XIX, § 10(A) provides that misconduct shall be ground for this court to impose, among others, one or more of the following sanctions: disbarment, suspension, probation, reprimand.

Rule XIX, § 10(C) provides that this court shall consider the following factors in imposing sanctions: 1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2) whether the lawyer acted intentionally, knowingly, or negligently; 3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and 4) the existence of any aggravating or mitigating factors.

In the instant case, the hearing committee recommended Respondent be reprimanded. Neither the ODC nor the Respondent specifically objected to this recommendation. As previously stated, the hearing committee determined that Respondent violated the spirit of Rule XIX, § 12(A) and also violated Rules 3.1, 8.4(a), and 8.4(d) of the Rules of Professional Conduct. The committee also determined that Ms. Raspanti suffered no direct harm; Ms. Raspanti filed at least two non-meritorious complaints against Respondent; and Respondent only represented her at the insistence of their parents. The committee found Respondent’s frustration with his sister was understandable, but nevertheless resulted in a rule violation that called for a sanction. The only aggravating factor found by the committee was Respondent’s refusal to acknowledge the wrongful nature of his conduct. The committee felt constrained to recognize a violation and recommend a sanction. Accordingly, the committee recommended that Respondent be publicly reprimanded.

ImOn the other hand, the board determined Respondent knowingly violated duties owed to the legal system and to Ms. Raspanti; caused harm to Ms. Raspanti in forcing her to defend the defamation claim; and took retaliatory action that threatens to undermine the disciplinary system.

In aggravation, the board found the following factors: refusal to acknowledge the wrongful nature of the conduct, lack of remorse, substantial experience in the practice of law, and indifference to making restitution or minimizing the harmful effects of the misconduct. The only mitigate ing factor was the absence of a prior disciplinary record.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension. The board recommended that Respondent be suspended for one year with all but three months deferred. The board further recommended that Respondent be placed on unsupervised probation for nine months following the active period of the suspension, subject to the condition that any misconduct during this period may be ground for making the deferred suspension executory or imposing additional discipline, as appropriate. Finally, the board recommended that Respondent be assessed with all costs and expenses of these proceedings.

Our de novo review of the record in this case convinces us that the recommendation of the hearing committee for a public reprimand is more in line with the nature of Respondent’s violation. Our choice of the most lenient discipline available to us pursuant to Rule XIX, § 10 should not be interpreted as deprecating the importance of the rule that was violated in the instant case. Thus, we issue the following caveat.

| ¡^Considering that the facts of this case were undisputed by Respondent and the ODC, we were left with a single, novel issue: the interpretation and application of Rule XIX, § 12(A). We have resolved that issue by finding the provision accords complainants absolute immunity from civil suits. As the instant case illustrates, not all complainants will be equally justified in making complaints to the lawyer disciplinary system; yet all complainants will have equal, absolute immunity. Granting a complainant absolute immunity when filing a complaint against a lawyer is a part of the disciplinary system adopted from the ABA Model Rules for Lawyer Disciplinary Enforcement in 1990, which are designed to regulate attorneys and sanction those who violate the ethical standards of the legal profession.

Respondent has violated a clear, unambiguous rule that has been in place for almost two decades; if he did not know that filing suit against his former client alleging defamation (and later abuse of process and malicious prosecution) was completely prohibited, he should have known. Louisiana is not the only state to find that violation of the absolute immunity rule is also a violation of the Rules of Professional Conduct prohibiting frivolous lawsuits and interference with the administration of justice. See Spikes, supra.

However, there are several factors in mitigation of Respondent’s knowing violation. First, we are issuing a sanction for a matter for which no one has been sanctioned previously. There are statements in the jurisprudence that might indicate the possibility of our arriving at an interpretation of Rule XIX, § 12(A) contrary to the interpretation we issue today. For example, the board in Harris, supra, as recently as 2003, indicated Section 12(A) did not provide a sanction; the board in the instant case found the rule clear and unambiguous.

| ^Second, we do not consider Respondent’s lack of remorse an aggravating factor; instead, we find he had a principled belief he was not engaging in inappropriate behavior. While we disagree with his belief, we are at the same time convinced he was sincere in his belief, thus, making any finding of a lack of remorse inappropriate.

Third, we note he has no prior disciplinary record during his lengthy career.

Next, although Respondent cannot avoid discipline by relying on the fact that he was represented by counsel in his suit against his sister, that fact may be considered in mitigation.

Finally, as did the hearing committee, this court recognizes that Respondent represented his sister only because his parents urged him to do so. Unlike the completely unprovoked threat of a civil suit in Harris, Respondent’s suit apparently was filed in an attempt to put an end to what the ODC determined to be baseless complaints on the part of his former client.

Regardless of the mitigating factors listed above, we find that Respondent in failing to refrain from filing a civil suit violated a duty he owed to a former client, the public, the legal system and the profession. He acted with, at least, constructive knowledge of a prohibition. Although he may have caused injury to his former client because she was called upon to defend herself, such injury was not substantial because there was ongoing litigation regarding a fee dispute.

Accordingly, we conclude that a public reprimand issue against Respondent, and that he be cast for costs of these proceedings.

PUBLIC REPRIMAND IMPOSED; RESPONDENT CAST FOR COSTS OF THESE PROCEEDINGS.

      . Respondent filed an objection in this court to the disciplinary board’s recommendation, but the filing was not within the time limits of Louisiana Supreme Court Rule XIX, § 11(G)(1). Ordinarily, the filing of objections in a bar disciplinary case determines how the case is treated. In a “no objection” matter under Rule XIX, § 11(G)(1)(a), this court may enter an order based on the recommended disciplines with written reasons, which may be summary in nature. By contrast, the filing of an objection mandates that the case be scheduled for oral argument under Rule XIX, § 11(G)(1)(b). Despite the fact that this is technically a “no objection” case, we chose to schedule oral argument and docket the case for a full opinion because the issue is res nova with this court.

      . In December 2003, the trial court granted Ms. Raspanti's motion to dismiss Respondent's defamation claims "based on complaints to the disciplinary board, including the appeal to the Supreme Court.” Respondent filed a notice of intent to seek supervisory writs from the trial court’s ruling, but it appears that the application was never filed in the court of appeal.

      . In its recommendation to this court, the disciplinary board noted that the ODC’s pre-hearing memorandum also alleged Respondent’s conduct violated Rule 3.1 entitled "Meritorious Claims and Contentions.” Respondent thereafter filed a motion to strike allegations relative to Rule 3.1 of the Rules of Professional Conduct. Citing Louisiana State Bar Association v. Keys, 567 So.2d 588, 591 (La.1990), the hearing committee concluded fair and adequate notice of the nature of the misconduct had been given to Respondent, and therefore, the Rule 3.1 claim could be pursued by ODC.

      . Suggestions For reform were made concerning: 1) structure of the disciplinary system, such as separation of the duties of the executive counsel from disciplinary duties; 2) intake and docket procedures; 3) investigation; 4) disposition after investigation; and 5) sanctions. The report noted an absence of provisions for complainant appeals and for witness immunity from criminal prosecutions and recommended the addition of same. Although the existing bar rule, Art. XV, § 13, provided an absolute privilege for complaints to the disciplinary committee, but did not provide immunity from the instigation of civil suits, the ABA team did not note that deficiency-

      . Prior to the reenactment, Louisiana Supreme Court Rule XIX provided: "All matters touching upon the discipline and disbarment of members of the bar shall be governed by Article XV of the Articles of Incorporation of the Louisiana State Bar Association, as amended, and as approved by this court.” La. S.Ct. R. XXX (West 1988) (repealed 1990).

      . The rules are divided into eight categories:
      1. Client-Lawyer Relationship:
      2. Counselor;
      3. Advocate;
      4. Transactions with Persons Other Than Clients;
      5. Law Firms and Associations;
      6. Public Service;
      7. Information about Legal Services; and
      8. Maintaining Integrity of the Profession.

      .Immunity from criminal prosecution which had been recommended by the ABA team was enacted in Paragraph B of Section 12, as follows: “Upon application by disciplinary counsel and notice to the appropriate prosecuting authority, the court may grant immunity from criminal prosecution to a witness in a discipline or disability proceeding.”

      . We note that although the wisdom of the rule has been questioned, the rule has been adopted in other states. For example, the Supreme Court of New Jersey has recognized that the strong public policy in favor of maintaining strict adherence to the rules of discipline required the removal of any impediment to the effective functioning of the disciplinary system. Allowing complainants to be vulnerable to lawsuits brought by lawyers against whom they complained would be an undesirable impediment. Allowing such suits might eliminate some maliciously motivated complaints, but legitimate complaints would simi-ially be chilled. The public policy considerations making unacceptable any such chilling effect is deemed important enough to overcome well-founded arguments against such immunity. In re Hearing on Immunity for Ethics Complainants, 96 N.J. 669, 671-672, 477 A.2d 339, 340 (1984).

      . It is conceivable that a non-lawyer would be defamed in a communication by a complainant or witness in an attorney-disciplinary proceeding. In which case, Section 12(A) nevertheless prohibits filing a suit against complainants and witnesses, and attorneys would be subject to discipline for filing suit on behalf of non-lawyers. Such allegedly defamed persons would be in violation of this rule if they filed in proper person, but there would be no sanctions against non-lawyers.

      . Compare with Rule 2, which is entitled "Counselor,” and includes Rule 2.1, as follows: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” The roles of counselor and advocate illustrate the dichotomy of a lawyer’s practice.

      . In Sommer, the court of appeal held defamatory statements by a State employee to the United States Customs Service about a Customs Service employee were not protected by absolute judicial privilege because the privilege does not protect against intentional destruction of the employee’s career. As previously stated, the board rejected Respondent’s defense based on Sommer because that case did not involve disciplinary proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Don L. EISENHARDT v. Dorles SNOOK and State Farm Fire and Casualty Company.
    No. 2008-C-1287.
    Supreme Court of Louisiana.
    March 17, 2009.

      Hubley, Marcotte, Thode & Hussey, Michael Sidney Hubley, Shreveport, for applicants.
    Rice & Kendig, John Marshall Rice, Shreveport, for respondent.
   PER CURIAM.

| jAt issue in this case is whether the court of appeal erred in reversing the district court’s judgment in part and assessing fault to defendants. For the reasons that follow, we find the court of appeal erred in disturbing the district court’s judgment, and therefore reinstate the district court’s judgment in its entirety.

UNDERLYING FACTS AND PROCEDURAL HISTORY

This litigation arises from a slip and fall incident which occurred at the home of Dories Snook. On the day of the incident, Ms. Snook was doing some work inside the home, while her live-in boyfriend, Don Ei-senhardt, was working outside. After Mr. Eisenhardt finished his work, he went inside the house and took a bath. While Mr. Eisenhardt was taking his bath, Ms. Snook attempted to carry a full trash bag out of the house. As she did so, the bag broke open and its contents, including eggs and other trash, spilled onto the front steps of the home. Ms. Snook picked up what she could, and then sprayed the steps with a garden hose to remove any remaining residue.

|2In the meantime, Mr. Eisenhardt finished his bath, dressed and prepared to go to the store. He exited the front door of the home with a soda in one hand and his wallet in the other hand. As he attempted to proceed down the front steps, he slipped and fell, sustaining injury to his finger and lower back.

Subsequently, Mr. Eisenhardt filed the instant personal injury suit against Ms. Snook and her homeowners’ insurer. State Farm Fire and Casualty Company (“State Farm”). In his petition, Mr. Ei-senhardt alleged that Ms. Snook failed to warn him of the dangers caused by the wet steps, and that the steps were unreasonably dangerous because they were wet.

The matter proceeded to a bench trial. The parties stipulated to the admission of certain evidence, including Mr. Eisen-hardt’s medical records and the insurance coverage under State Farm’s policy.

At trial, both Ms. Snook and Mr. Eisen-hardt testified. Ms. Snook testified no other accidents had occurred on the steps during her thirty years of living in the home. Ms. Snook stated that on the day of the accident, she attempted to take the trash out, but the bag broke on the step, leaving a slick film of eggs and squash. Ms. Snook detailed her cleaning of the steps by sweeping them and then spraying them off with water. She believed the steps were clean, but noticed some residue remaining after Mr. Eisenhardt fell. On further examination, Ms. Snook admitted that she had not mentioned the remaining residue when she gave a statement to State Farm shortly after Mr. Eisenhardt’s accident. Ms. Snook also admitted that she and Mr. Eisenhardt were romantically involved at one time. She denied that Mr. Eisenhardt had a drinking problem, and further denied any recollection of a domestic dispute after the accident in which she reported that Mr. Eisenhardt had been drinking. Ms. Snook | ¡¡confirmed that she claimed Mr. Eisenhardt as a dependent for tax purposes, because he did not earn enough to file a tax return.

Mr. Eisenhardt testified that he had a pre-existing back injury, and that at the time of this accident, he earned approximately $400 per week doing automobile mechanic work. He stated that at the time of the accident, he exited the home with a soda in one hand and his wallet in the other hand, and that he slipped on the slick steps after crossing the entire porch and attempting to step down. After the accident, he first noticed that the steps were wet, and he also felt the residue. Mr. Eisenhardt explained that he hurt his right hand and lower back, and attempted to go to the emergency room on the date of the accident. He found the hospital emergency room was too crowded at that time, and he returned the next day. Mr. Eisenhardt was treated for several months for low back pain and a fracture to his right hand. He complained of continued weakness and pain in his hand, and pain in his lower back. On cross-examination, Mr. Eisenhardt admitted to not reporting in his deposition the initial emergency room treatment on the day after the accident. He further admitted to having a criminal history, including recently pleading guilty to driving with switched plates and driving without a license. He acknowledged he had not filed a tax return or reported any income for at least fifteen years.

At the conclusion of trial, the district court entered a judgment for defendants, dismissing Mr. Eisenhardt’s claim for damages. In oral reasons for judgment, the district court stated:

Aside from the credibility issues that I don’t think it’s necessary to get into, I do think that he was probably injured, probably fell, but we just don’t live in a perfect world. And just because somebody gets hurt that doesn’t mean that somebody gets paid a big chunk of money. That’s just the way it is. Now when you go into a grocery store the standards are a little bit higher, and the reason for that is because the grocery stores have on, and stores in ^general, have on display items that they want you to purchase. So they draw your attention intentionally to those items on the shelf and the customers are in there and they’re not necessarily looking down at their feet. But all of us have to look where we’re going. I mean you learn that when you’re two years old and walking that you have got to watch where you’re going. And he was not looking where he was going. She had washed down the steps. He should have seen the water and known that there was a hazard. I almost slipped down the other day when it was raining at my house[,] that I’ve lived all my life practically in[,] on some steps that were wet. Whose fault was it? It was my fault. I wasn’t careful enough. I knew it was wet, could look and see that it was wet, and I wasn’t careful enough. If I would have fallen it would have been my fault. You have to watch where you’re going. And based on that I just do not think that liability — that there’s liability present here because I think it’s all Mr. Eisenhardt’s fault.

Mr. Eisenhardt appealed. The court of appeal affirmed in part, reversed in part, and amended in a split decision. Eisenhardt v. Snook, 43,128 (La.App. 2 Cir. 5/14/08), 986 So.2d 700.

In its opinion, the court of appeal found that the district court made a factual determination that a hazard was created after Ms. Snook spilled the garbage and washed the steps down. In reaching this conclusion, the court of appeal emphasized the portion of the district court’s reasons in which it explained that Mr. Eisenhardt was “probably injured, probably fell” and that “he should have seen the water and known that there was a hazard.” After reviewing the record, the court of appeal found “no manifest error in the determination that the slippery steps created a hazard.” Accordingly, the court of appeal affirmed the district court’s judgment “insofar as it determined that an unreasonable risk of harm existed.”

Nonetheless, the court of appeal found the district court, having determined a hazard existed, erred in assessing 100% of the fault for the accident to Mr. Eisen-hardt. The court stated, in pertinent part:

| sIn the instant case, the trial court held that Eisenhardt was 100% responsible for his fall. Based on the facts in the record, we disagree. Since the trial court determined that a hazard existed, it was manifestly erroneous to find no fault on the part of the owner of the house, Snook, for creating the hazard and not warning Eisenhardt about it. While the record bears out that Eisen-hardt was preoccupied and not as prudent as he should have been when he was leaving the house, his accident was, in part, due to the slippery surface of the steps.

Having found an error on the part of the district court, the court of appeal proceeded to reallocate fault. It allocated 70% of the fault to Mr. Eisenhardt and the remaining 30% to Ms. Snook. Additionally, the court of appeal awarded Mr. Eisen-hardt $15,000 in general damages and $5,677.02 in special damages. Two judges dissented from the majority’s opinion.

Upon defendants’ application, we granted certiorari to consider the correctness of the court of appeal’s judgment. Eisen-hardt v. Snook, 08-1287 (La.10/24/08), 8 So.3d 565, 2008 WL 6153733.

DISCUSSION

It is well-settled law that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions, and to either correct the condition or warn of its existence. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991); Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406, 410 (La.1976).

Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is Lnot liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184; Hutchinson v. Knights of Columbus, 03-1533 at p. 9 (La.2/20/04), 866 So.2d 228, 234; Pitre v. Louisiana Tech University, 95-1466, 95-1487 at p. 11 (La.5/10/96), 673 So.2d 585, 591. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984).

In the case at bar, the court of appeal premised its opinion on a finding that the district court made a factual determination that an unreasonably dangerous condition was created when Ms. Snook washed the steps after spilling trash on them. However, a complete reading of the district court’s reasons for judgment reveals that it made no such finding. Although the district court referred to a “hazard,” it did so in the context of explaining that Mr. Eisenhardt “should have seen the water and known that there was a hazard.” The court further stated, “I think it’s all Mr. Eisenhardt’s fault.” From these statements, it was obvious that the district court made a finding that Ms. Snook was not liable for Mr. Eisenhardt’s injuries because the condition of the steps should have been observed by Mr. Eisenhardt in the exercise of reasonable care.

An appellate court may not set aside a district court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Hornsby v. Bayou Jack Logging, 04-1297 (La.5/6/05), 902 So.2d 361; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would 17have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221.

Although the court of appeal purported to affirm the district court’s factual findings, it is readily apparent that the court of appeal actually rejected these findings. Based on our review of the record, we find no manifest error in the district court’s factual determination that the condition of the steps should have been open and obvious to Mr. Eisenhardt. While the steps may have been slippery due to water, not every minor imperfection or defect in a thing will give rise to delictual responsibility. Gray v. Economy Fire & Casualty Co., 96-667 (La.App. 3rd Cir.11/6/96), 682 So.2d 966; Montgomery v. City of New Orleans, 537 So.2d 1230 (La.App. 4th Cir.1989). The record further supports the district court’s finding that Mr. Eisenhardt, who walked out of the house carrying items in both of his hands, was not acting with sufficient care at the time of the accident. See Carr v. City of Covington, 477 So.2d 1202, 1204 (La.App. 1st Cir.1985), writ denied, 481 So.2d 631 (La.1986) (holding a person “has a duty to see that which should be seen” and “is bound to observe his course to see if his pathway is clear”).

In summary, we find the record supports the district court’s determination that Mr. Eisenhardt should bear all of the fault for this accident. The court of appeal erred in holding otherwise. Accordingly, we will reverse the judgment of the court of appeal insofar as it reverses and amends the district court’s judgment, and reinstate and affirm the district court’s judgment in its entirety.

DECREE

For the reasons assigned, the judgment of the court of appeal, insofar as it reverses and amends the district court’s judgment, is reversed. The judgment of the ^district court dismissing the demand of plaintiff, Don L. Eisenhardt, with prejudice is reinstated and affirmed in its entirety. Plaintiff to bear all costs in this court.

JOHNSON, J., dissents.


author: PER CURIAM. KNOLL, J., WEIMER, J.,

text:
    Judith SANDIFER, Formerly Known as Judith Honaker v. The LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS.
    No. 2008-C-1159.
    Supreme Court of Louisiana.
    March 17, 2009.
    Rehearing Denied May 22, 2009.

    Francis Brian Mulhall, Metairie, for applicants.
    Shows, Call, Berthelot & Walsh, Edmond Wade Shows, Jeffrey Kent Cody, for respondent.

       Weimer, J., would grant rehearing.

   PER CURIAM.

11 After considering the record, the applicable law, and the oral argument before Court, we have determined that the writ application was improvidently granted. Therefore, we recall the Order dated October 24, 2008 granting the writ application. The writ application is hereby denied.

WRIT GRANT RECALLED; WRIT DENIED.

KNOLL, J., concurs and assigns reasons.

WEIMER, J., dissents with reasons.

KNOLL, J.,

concurs.

hi concur in the recall of the Order dated October 24, 2008 granting this writ application and concur in the denial of this writ, with the following observations. Because the Louisiana State Board of Practical Nurse Examiners (“Board”) met in executive session to review the Hearing Officer’s findings of fact and recommendation regarding disciplinary proceedings for Ms. Sandifer’s refusal to submit to a drug screen, the district court voided the Board’s action of placing Ms. Sandifer on probation and enjoined any further action by the Board enforcing the penalties it imposed. Although La.Rev.Stat. Ann. 42:6.1(A)(1) (West 2008) provides that a person in Ms. Sandifer’s position may require that such discussion be held at an open meeting, that this provision is to be construed liberally, La.Rev.Stat. 42:4.1, and any action taken in violation shall be voidable, La.Rev.Stat. 42:9, this purely technical violation of meeting in executive session in which the plaintiff can show no harm thereby should not result in voiding the disciplinary action against plaintiff. Plaintiff refused to take a drug screen required by her employer during an investigation of missing narcotics. She admitted she refused the drug screen because she had “accepted” marijuana while on vacation.

Athough we are constrained by the statutes as presently written to agree with |2the lower courts that the Board’s refusal to hold an open meeting while deliberating the disciplinary proceeding filed against the plaintiff shall void the action taken by the Board, I find that under these circumstances the plaintiff should have had to show harm or prejudice before being granted such extraordinary relief. Plaintiff admitted she accepted marijuana and she elected to resign from her position at the nursing home where she was employed when she refused to submit to the drug screen. Moreover, the Board did not suspend or revoke her license, but placed her on probation. The circumstances of this case have congested the judicial dockets for a harmless technical violation. However, this is a matter for the legislature to address, as the judiciary cannot, under the guise of interpretation, assume legislative functions. State v. Vallery, 212 La. 1095, 1099, 34 So.2d 329, 331 (1948); La. Const. art. 2, § 2.

WEIMER, J.,

dissenting.

hi respectfully dissent. Having granted the writ in this matter, I believe an opinion should be issued.


text:
    In re Katherine J. KNAPP.
    No. 2009-OB-0846.
    Supreme Court of Louisiana.
    April 24, 2009.
   ORDER

Considering the Petition for Admission to the Bar of the State of Louisiana filed by petitioner, Katherine J. Knapp,

IT IS ORDERED that petitioner’s application be and hereby is denied at this time. Upon satisfactorily passing the bar examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


text:
    In re Michael A. KENNEDY.
    No. 2009-OB-0020.
    Supreme Court of Louisiana.
    April 24, 2009.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Michael A. Kennedy, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of three years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. Should petitioner fail to make a good faith effort to satisfy his financial obligations, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    STATE of Louisiana v. Kirk WILLIAMS.
    No. 2009-KK-1056.
    Supreme Court of Louisiana.
    May 13, 2009.
   ORDER

GRANTED IN PART; OTHERWISE DENIED because the defendant has not entered a dual plea of not guilty and not guilty by reason of insanity, and because Louisiana has long subscribed to the rule that a transient, substance-induced psychotic disorder does not in any event constitute a mental disease or defect for purposes of an insanity defense as defined by La. R.S. 14:14. See, State v. Scott, 344 So.2d 1002, 1005-1006 (La.1977); State v. Kraemer, 49 La. Ann. 766, 22 So. 254, 255-256 (1897). Dr. Deland may not give her opinion that defendant was actively psychotic at the time of the offense and, for that reason alone, lacked the capacity to form specific intent. It remains for the trial court to instruct jurors in its general charge at the close of the case that the defense of intoxication does not exempt a defendant from criminal culpability for his acts as does the defense of insanity but that it may negate an essential element of the charged offense if it is of such a degree as to preclude the presence of specific intent. La. R.S. 14:15(2); cf. La. C.E. art. 105. (“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”)

KIMBALL, C.J., and WEIMER, J., would deny.

JOHNSON, J., concurs in the grant.


text:
    In re Michael Shane WILLIS.
    No. 2009-B-0211.
    Supreme Court of Louisiana.
    May 13, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

07-DB-Ob7

Between September 11, 2006 and January 5, 2007, respondent was ineligible to practice law due to his failure to pay his bar dues and the disciplinary assessment. Nonetheless, on October 20, 2006, he accepted the representation of Johnny Milton Johnson in a bankruptcy matter. Mr. Johnson paid respondent $1,074 in attorney’s fees and advanced costs. Thereafter, respondent failed to perform any work on Mr. Johnson’s behalf and failed to communicate with Mr. Johnson.

In December 2006, Mr. Johnson contacted respondent’s office to terminate the representation and to request a refund of his fees and a return of his documents. After receiving no response from respondent, Mr. Johnson hired attorney Romelzy Willis, who sent respondent a letter, dated January 11, 2007, requesting a refund and a return of Mr. Johnson’s documents. On January . 22, 2007, respondent’s secretary informed Mr. Willis that respondent would give Mr. Johnson a refund and return his documents. When Mr. Johnson did not receive the refund or the documents, Mr. |2WilIis faxed a second letter to respondent on January 29, 2007. In response to Mr. Willis’ letter, respondent asked for a written request directly from Mr. Johnson. Accordingly, Mr. Willis sent respondent a written request for a refund and return of documents signed by Mr. Johnson. Respondent failed to respond to Mr. Johnson’s letter.

In February 2007, Mr. Johnson filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance- of a subpoena to obtain his sworn statement. Numerous attempts to serve respondent with the subpoena were made by both the local sheriffs office and the ODC’s investigator, but these efforts were unsuccessful.

07-DB-081

On November 25, 2006, respondent and his girlfriend, Destinee Slayter, were waiting in a vehicle at the drive-up window of a fast food restaurant in Oberlin, Louisiana. While awaiting their order, respondent and Ms. Slayter began arguing. This led to a physical altercation between them wherein respondent hit and grabbed Ms. Slayter. Respondent then poured beer on Ms. Slay-ter and hit her over the head with the empty beer bottle. In response, Ms. Slay-ter hit respondent in the head with a beer bottle.

The police were summoned to the restaurant by an employee who witnessed the incident. The police took respondent to the police station, where he provided a written statement. He was then released due to his injuries; however, a warrant was issued for his arrest, and the police instructed him to turn himself in the next morning. Respondent failed to do so, and he failed to appear in court for his arraignment on RApril 8, 2007 on two counts of simple battery. Accordingly, the court issued a bench warrant for his failure to appear. As of the date of the filing of the formal charges, the criminal charges against respondent were still pending.

Respondent failed to cooperate with the ODC in its investigation of this matter.

DISCIPLINARY PROCEEDINGS

Formal Charges

On September 5, 2007, the ODC filed the formal charges as set forth above in 07-DB-047. On December 14, 2007, the ODC filed the formal charges as set forth above in 07-DB-081. The ODC alleged that respondent’s conduct violated Rules 1.1(c) (failure to pay bar dues and the disciplinary assessment), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a) (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), 5.5(a) (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Respondent was served with both sets of formal charges via certified mail but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an oppor-tumty to file with the hearing committee written arguments and documentary ^evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submissions, the hearing committee determined that the factual allegations contained in the two sets of formal charges have been deemed admitted and proven by clear and convincing evidence. The committee then made numerous factual findings, including the following:

Respondent was certified ineligible to practice law from September 11, 2006 to January 5, 2007 due to his failure to pay bar dues and the disciplinary assessment. On October 20, 2006, Mr. Johnson retained respondent to represent him in a bankruptcy matter. That same day, Mr. Johnson paid respondent $1,074 in attorney’s fees and advanced costs. Respondent subsequently failed to perform any work. He also failed to communicate with Mr. Johnson from November 2006 through January 22, 2007, despite Mr. Johnson’s multiple attempts to communicate with him. Mr. Johnson eventually terminated respondent’s representation and requested a refund of the funds paid as well as the return of his documents. Mr. Johnson received no response from respondent and, on January 5, 2007, retained another attorney to represent him. Despite repeated requests for a return of the funds and documents, respondent failed to remit the refund and failed to return Mr. Johnson’s documents. Respondent failed to cooperate with the ODC in its investigation of Mr. Johnson’s complaint.

On November 25, 2006, a witness saw respondent strike a female companion with a beer bottle during a physical altercation at the drive-up window of a fast food restaurant in Oberlin, Louisiana. The police informed respondent that a warrant was |fito be issued for his arrest and that it would be best if he turned himself in. However, respondent failed to do so and failed to appear in court for his arraignment on April 3, 2007. The January 4, 2007 edition of the Oakdale Journal reported that respondent was arrested on December 22, 2006 for aggravated and simple battery.

Based on these findings, the committee determined that respondent violated Rules 1.1(c), 1.3, 1.4(a), 1.16(d), 5.5(a), 8.1(c), 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. The committee stated:

The Respondent acted in a manner which clearly violated his legal and ethical obligations and knowingly and intentionally engaged in conduct prejudicial to the administration of justice, all of which resulted in substantial harm to his client, the legal profession, the State of Louisiana and others, and demonstrates a fundamental lack of moral character on the Respondent’s part, as well as adversely reflects upon the Respondent’s fitness to practice.

After evaluating the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction for respondent’s misconduct is disbarment.

The committee found the following aggravating factors present: a dishonest or selfish motive, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and indifference to making restitution. The only mitigating factor found by the committee is the absence of a prior disciplinary record.

Under these circumstances, the committee recommended that respondent be disbarred and be required to refund $1,074 to Mr. Johnson.

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

| aDisciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s findings do not appear to be manifestly erroneous. The board also determined that the committee properly applied the Rules of Professional Conduct. Therefore, the board adopted the rule violations found by the committee.

The board further determined that respondent knowingly and intentionally violated duties owed to his client, the public, and the legal profession. Respondent caused serious actual harm to Mr. Johnson by failing to return his documents and the $1,074 fee. Respondent also caused actual harm to Ms. Slayter by striking her with his hands and a beer bottle, which further caused a high risk of serious harm given what could result from a blow to the head from a beer bottle. Finally, respondent’s refusal to cooperate with the ODC caused actual harm to the disciplinary system by causing the ODC to expend additional time and resources. The board agreed with the committee that disbarment is the baseline sanction.

In aggravation, the board found a dishonest or selfish motive, multiple offenses, bad faith obstruction of the disciplinary-proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victim, and indifference to making restitution. The board agreed with the committee that the only mitigating factor is the absence of a prior disciplinary record.

Under these circumstances, the board recommended that respondent be disbarred and be ordered to pay restitution to Mr. Johnson.

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

^DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts in this matter establish that respondent neglected Mr. Johnson’s bankruptcy matter, failed to communicate with his client, failed to refund an unearned fee and unused costs, failed to return his client’s documents upon termination of the representation, practiced law while ineligible to do so, and failed to cooperate with the ODC in its investigation. He also engaged in violent criminal conduct by hitting Ms. Slayter with his hands and a beer bottle. In acting as he did, respondent violated Rules 1.1(c), 1.3, 1.4(a), 1.16(d), 5.5(a), 8.1(c), and 8.4(b) of the Rules of Professional Conduct.

| ¡Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly and intentionally violated duties owed to his client, the public, and the legal profession. He caused actual harm to both Mr. Johnson and Ms. Slayter.

Sanctions in cases dealing with attorneys who have engaged in violent conduct range from a year and a day suspension to disbarment. Additionally, in the Johnson matter, the ABA’s Standards for Imposing Lawyer Sanctions indicate that the baseline sanction is in the range of a suspension to disbarment. Specifically, Standard 4.11 (disbarment for knowingly converting client property and causing injury or potential injury to a client) and Standard 4.42(a) (suspension for knowingly failing to perform services for a client and causing injury or potential injury to a client) are applicable.

Given that respondent also practiced law while ineligible to do so, we find the appropriate baseline sanction is disbarment. The numerous aggravating factors present, and relative lack of mitigating factors, suggest that no downward deviation from the baseline is warranted.

| (Accordingly, we will adopt the disciplinary board’s recommendation and disbar respondent. We further order respondent to make full restitution to Mr. Johnson.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Michael Shane Willis, Louisiana Bar Roll number 28270, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. It is further ordered that respondent make full restitution to Johnny Milton Johnson of any unearned fees and unused costs. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . According to the police report, respondent required three stitches above his left eye where he was hit with the beer bottle.

      . According to the court minutes, the charges were still pending on July 8, 2008 due to respondent's continued failure to appear for his arraignment.

      . The board noted that the formal charges in 07-DB-047 (the Johnson matter) alleged respondent violated Rule 5.3(a) instead of 5.5(a). The board determined that this appears to have been a typographical error given the factual allegations in the formal charges. The board also noted that the committee corrected this error by concluding that respondent violated Rule 5.5(a) and not 5.3(a).


text:
    In re Jeremy A. YEAGER.
    No. 2009-OB-0870.
    Supreme Court of Louisiana.
    May 15, 2009.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Jeremy A. Yeager, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify his character and fitness to this court, citing the following concerns: (1) petitioner’s failure to disclose on his bar application a charge and subsequent warrant for issuing worthless checks; (2) his failure to comply with prior requests from the Committee to submit information concerning delinquent credit accounts; (3) a DWI charge in August 2005; and (4) a charge in August 2007 for possession of a Schedule II drug (cocaine) and illegal carrying of a weapon. Petitioner then applied to this court, seeking admission to the practice of law.

After reviewing the evidence and considering the law, we conclude that at this time, petitioner has failed to meet his burden of proving that he has good moral character and fitness to practice law. See Supreme Court Rule XVII, § 5(D). Accordingly, it is ordered that the application for admission be and hereby is denied.

ADMISSION DENIED.


text:
    In re Benjamin W. GULICK.
    No. 2009-OB-0869.
    Supreme Court of Louisiana.
    May 15, 2009.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Benjamin W. Gulick, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify him for admission to the Bar based upon character and fitness concerns relating to his diagnosis of alcohol dependency and his record of drug- and alcohol-related arrests and citations. Petitioner then applied to this court, seeking admission to the practice of law.

After reviewing the evidence and considering the law, we conclude that at this time, petitioner has failed to meet his burden of proving that he has good moral character and fitness to practice law. See Supreme Court Rule XVII, § 5(D). Accordingly, it is ordered that the application for admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not re-apply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of his contract with the Lawyers Assistance Program, and in no event less than one year from the date of this judgment.

ADMISSION DENIED.


text:
    CLECO CORPORATION v. Samuel E. SANSING, et al.
    No. 2009-CC-0806.
    Supreme Court of Louisiana.
    May 15, 2009.
   PER CURIAM.

| iThis application arises from a suit filed by Cleco against Samuel Sansing, a former Cleco employee. Mr. Sansing filed a re-conventional demand against Cleco for libel, slander and defamation. During discovery, Cleco declined to produce a certain document sought by Mr. Sansing, and sought a protective order on the ground the document was subject to the attorney-client privilege. Mr. Sansing opposed the protective order, asserting that the “crime-fraud” exception to the attorney-client privilege applied.

After a hearing, the district court denied the protective order and ordered that the document be produced. Cleco now seeks review of that ruling.

In order to vitiate the attorney-client privilege, the court must make a finding that the attorney-client relationship was intended to further continuing or future criminal or fraudulent activity. State v. Taylor, 502 So.2d 537 (La.1987) (on second rehearing). The party challenging the privilege must (1) make an independent prima facie case that a crime has been committed, and (2) then demonstrate that the privileged information bears a relationship to the alleged crime or fraud. Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir.1988).

In the instant case, it is unclear from the facts presented whether the district court made any specific findings in this regard. Without these findings, we cannot determine whether the district court erred in denying protective relief for the document in question.

^Accordingly, the judgment of the district court is vacated. The ease is remanded to the district court, which is instructed to render a new ruling on Cleco’s motion for protective order, including specific findings on the applicability of the crime-fraud exception, after appropriate briefing from the parties and, if necessary, an additional in camera review of the privileged documents.


text:
    In re John Murray GAVIN.
    No. 2008-OB-2082.
    Supreme Court of Louisiana.
    May 15, 2009.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| petitioner, John Murray Gavin, is an attorney licensed to practice law in the State of Minnesota. When petitioner applied to take the Louisiana Bar Examination, he was advised by the Committee on Bar Admissions (“Committee”) that he could not sit for the exam on character and fitness grounds stemming from a 2006 incident in which he used racial epithets toward two employees of DePaul University College of Law. Moreover, in the course of proceedings conducted by DePaul against petitioner under its Anti-Discrimination and Harassment Policy, he falsely denied making the offensive statements, which the Committee noted established petitioner’s “lack of remorse or accountability.” We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Gavin, 07-1484 (La.7/17/07), 959 So.2d 893.

Petitioner thereafter successfully passed the essay portion of the bar exam. On petitioner’s application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence.

During the character and fitness hearing, the commissioner received documentary evidence and heard testimony given by petitioner and a witness. Following the proceedings, the commissioner filed his report with this court, 12recommending that petitioner be denied admission to the practice of law. Petitioner did not object to that recommendation.

The testimony at the hearing focused primarily on two issues: the incident at DePaul in 2006, which ultimately resulted in a determination by the university that petitioner engaged in race-based harassment of two employees of the College of Law; and petitioner’s lack of candor. With regard to the latter issue, it was revealed that petitioner failed to disclose several prior arrests and criminal convictions when he applied to law school in 1995. Petitioner acknowledged during the hearing that these omissions were knowingly and intentionally made because he feared he would not be admitted to law school in the face of an accurate disclosure. Moreover, petitioner acknowledged that within days after submitting his law school application he was arrested and charged with DWI; nevertheless, he did not update his application, although he had signed an acknowledgment of his obligation to do so. Petitioner finally updated his law school application in 1996, at the end of his first year of law school, but the information he provided was untruthful and incomplete.

Under the circumstances, there can be no doubt that petitioner has demonstrated a lack of candor which reflects adversely on his character and fitness. The incident at DePaul further underscores petitioner’s lack of fitness to practice law. Not only did petitioner utter derogatory and offensive comments which have no place in the practice of law, he continued in his pattern of lack of candor by denying throughout the DePaul proceedings that he made the comments in the first instance. We therefore conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(D).

13Accordingly, it is ordered that the application for admission be and hereby is denied.

ADMISSION DENIED.


text:
    In re Kellye Lambert WALKER.
    No. 2009-OB-0878.
    Supreme Court of Louisiana.
    May 15, 2009.
   ORDER

Considering the Petition for Resignation from the Practice of Law Filed by Kellye Lambert Walker,

IT IS ORDERED that the petition of Kellye Lambert Walker, Louisiana Bar Roll number 24689, seeking to voluntarily resign from the practice of law in the State of Louisiana pursuant to Supreme Court Rule XVIII, § 5 be and is hereby granted.

/s/ Greg G. Guidry Justice, Supreme Court of Louisiana


text:
    Craig Stevens ARABIE, et al. v. CITGO PETROLEUM CORP., et al.
    No. 2009-CC-0569.
    Supreme Court of Louisiana.
    May 15, 2009.
   PER CURIAM.

h This application arises from a suit filed by plaintiffs against CITGO Petroleum Corp. (“CITGO”) and others, based on a release of hazardous materials from a CIT-GO waste water treatment plant. During discovery, CITGO declined to produce certain documents sought by plaintiffs on the ground these documents were subject to the attorney-client privilege. Plaintiffs responded by filing a motion to compel production, asserting that the “crime-fraud” exception to the attorney-client privilege applied.

After a hearing, the district court granted plaintiffs’ motion in part. The district court made a finding that CITGO engaged in fraudulent conduct, and therefore concluded the attorney-client privilege did not apply. CITGO now seeks review of that ruling.

In order to vitiate the attorney-client privilege, the court must make a finding that the attorney-client relationship was intended to further continuing or future criminal or fraudulent activity. State v. Taylor, 502 So.2d 537 (La.1987) (on second rehearing). The party challenging the privilege must (1) make an independent prima facie case that a crime has been committed, and (2) then demonstrate that the privileged information bears a relationship to the alleged crime or fraud. Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir.1988).

|gIn the instant case, the district court determined that CITGO engaged in fraud, but did not determine whether the privileged information bore a relationship to that fraud. Without such a finding, we cannot determine whether the district court erred in applying the crime-fraud exception.

Accordingly, the judgment of the district court is vacated. The case is remanded to the district court, which is instructed to render a new ruling on plaintiffs’ motion to compel after appropriate briefing from the parties and in camera review of the privileged documents.

KIMBALL, C.J., and KNOLL, J., would deny.

       Traylor, J. recused.

      . Because the district court's analysis is incomplete, we need not pass on the question of whether CITGO engaged in fraudulent conduct.