source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re John E. DEMORUELLE.
    No. 2008-B-2356.
    Supreme Court of Louisiana.
    April 24, 2009.
    Rehearing Denied May 22, 2009.
   PER CURIAM.

11This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John E. Demoruelle. For the reasons that follow, we suspend respondent from the practice of law for a period of two years.

INTRODUCTION

The procedural history of this case is somewhat complicated. In March 2004, the ODC filed two counts of formal charges against respondent. The formal charges alleged that respondent neglected legal matters, failed to communicate with his clients, failed to file annual accountings for a trust of which he served as trustee, and made unauthorized withdrawals from the trust for his personal use. The formal charges were served upon respondent by certified mail, but he failed to file an answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence. Following review, both the hearing committee and the disciplinary board recommended that respondent be suspended for one year, fully deferred, and be required to make restitution to the trust. Although neither respondent nor the ODC objected to the recommendation, this court on its own motion ordered briefing from the parties on the issue of an appropriate sanction. After receiving the briefs, we accepted the recommendation of the disciplinary board 12and suspended respondent from the practice of law for one year, which was deferred in its entirety subject to a one-year period of probation. In re: Demoruelle, 05-0852 (La. 12/16/05), 916 So.2d 1028.

The ODC then applied for rehearing, asserting that the discipline imposed by this court was unduly lenient. On February 17, 2006, we granted rehearing, vacated the deemed admitted order, and remanded the matter for a full hearing before a hearing committee, stating:

[W]e cannot come to a reasoned conclusion regarding the appropriateness of the sanction recommended by the disciplinary board based on the record before us. Under these circumstances, the interests of justice compel us to set aside the deemed admitted order and remand the formal charges for a full hearing before the hearing committee.

In October 2006, the ODC amended the formal charges against respondent. The matter is now before the court again based on the disciplinary board’s new recommendation in light of the amended charges and evidence developed at the formal hearing.

UNDERLYING FACTS

Count I

On November 22, 1979, Charles Ray Manuel was seriously injured in an automobile accident, which left him a quadriplegic and brain damaged. Charles was interdicted in March 1980, and his mother, Anna Manuel, was appointed curatrix of his estate. In her capacity as curatrix, Mrs. Manuel filed suit on behalf of Charles against the parties responsible for his injuries. On December 29, 1980, the parties reached a structured settlement totaling $1,295,00o. Respondent’s law partner, |sDouglas Hebert, handled the personal injury case, and respondent received a portion of the attorney’s fees paid to the law firm.

In 1981, Mrs. Manuel established an Irrevocable Inter Vivos Trust (the “trust”) to receive the proceeds of Charles’ settlement. The court appointed Terry Hebert, Douglas Hebert’s wife, to act as trustee.

In May 1982, after ending his partnership with Mr. Hebert, respondent began representing Mrs. Manuel. On her behalf, he filed a petition to revoke the trust, then amended the petition to request that Mrs, Manuel instead be appointed as the new trustee. In January 1983, respondent filed a petition on behalf of Mrs. Manuel and her husband asserting a claim against Charles’ estate in the amount of $500 per month for maintenance and support. Respondent filed the petition despite the fact that the claim conflicted with Mrs. Manuel’s duties as curatrix. Mrs. Manuel then requested that respondent serve as trustee. On May 16, 1983, respondent was appointed the trustee of the trust by order of the 33rd Judicial District Court in response to a joint petition to appoint a successor trustee filed by respondent and Mrs. Hebert.

At the time of respondent’s appointment as trustee, Mr. Hebert continued to collect attorney’s fees due from the personal injury representation, and respondent, acting as trustee, proceeded to pay all outstanding attorney’s fees due to Mr. Hebert. As trustee, respondent also purchased land and constructed a home for Charles and |4his parents to share. Because the trust did not have enough money for such an expenditure, respondent mortgaged the property despite a provision in the trust that none of the trust’s property could be mortgaged. Charles was removed from a nursing home and moved into the new home. Under respondent’s administration, Charles paid a house note, homeowner’s insurance, utility bills, and automobile insurance for the family’s vehicle. Charles also made loans to family members and others, as well as gifts of cash.

As trustee, respondent also collected a monthly fee of approximately $300, which he alone determined and collected without approval of Mrs. Manuel or the court. Furthermore, respondent regularly represented Mrs. Manuel in her capacity as curatrix and in separate issues. Upon her direction, respondent collected his legal fees for these representations from the trust.

Respondent received Charles’ final $100,000 settlement payment in January 1996. Instead of depositing the payment into the trust account, he purchased a certificate of deposit in the trust’s name. He then used a portion of these funds to repay three loans he had obtained on behalf of the trust. However, the proceeds of one of the loans in the amount of $8,030, which respondent obtained in November 1996, cannot be accounted for because there is no evidence that this amount was ever deposited into the trust account. Nonetheless, respondent withdrew $8,181.43 from the certificate of deposit in January 1997 to repay the loan. On numerous occasions, respondent also withdrew funds from the certificate of deposit, incurring early withdrawal penalties, and deposited same into the trust account, thus closing out the certificate of deposit in April 1999.

On August 27, 1996, respondent wrote a check from the trust account to the “John E. Demoruelle Campaign” in the amount of $700. This check was issued | ¿without Mrs. Manuel’s authorization. An independent audit of the trust’s bank records also revealed that respondent wrote numerous checks, totaling thousands of dollars, for unknown expenditures between December 1993 and April 2000, the time period for which the auditor was able to obtain records of the trust.

Respondent was also required to furnish “an annual account to the duly authorized curator of Charles R. Manuel.” Nevertheless, respondent has never provided an annual accounting to Mrs. Manuel or filed same with the court. Indeed, respondent maintained very few financial records to document the activity of the trust’s bank accounts.

In January 2000, the trust account began to incur NSF and overdraft fees, and by April 2000, the trust funds were entirely depleted. Thereafter, respondent informed Mrs. Manuel that there was no more money in the account.

In May 2000, Mrs. Manuel, through a family member, filed a disciplinary complaint against respondent, requesting that he provide an accounting of the trust account. Because respondent had not kept complete records of the trust, he was unable to provide the accounting to his client or the ODC.

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.7 (conflict of interest), 1.15 (safekeeping property of clients or third parties), 2.1 (a lawyer shall exercise independent professional judgment and render candid advice in representing a client), 5.4(c) (professional independence of a lawyer), 8.4(a) (violation of the Rules of | ^Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count II

In July 1998, Debra Menard paid respondent $825 to represent her in a community property matter. In February 1999, Ms. Menard paid respondent $1,650 to handle her child custody matter. Ms. Menard made two additional payments to respondent in June 2000 totaling $240 to pay for court costs in the child custody matter.

Respondent failed to reasonably communicate with Ms. Menard about the status of her cases. He also failed to exercise due diligence in having the custody matter brought to court for enforcement and modification of the visitation plan pursuant to his client’s wishes. Furthermore, respondent was required to notify opposing counsel of his client’s proposed summer visitation schedule by May 1st. Despite receiving the desired dates from his client before May 1st, respondent neglected to timely inform opposing counsel of the dates in 1999 and 2000.

Ms. Menard terminated respondent’s services on November 27, 2000. Thereafter, she requested in writing on at least two occasions that respondent provide her with an accounting and a refund of any unearned fees. Respondent failed to respond to these requests.

In January 2001, Ms. Menard filed a disciplinary complaint against respondent. In October 2001, respondent finally provided an accounting to the ODC, which represented that he spent 18.7 hours on Ms. Menard’s cases, earning a total of $3,005.

17The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, and 1.16(a) (declining or terminating the representation of a client) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

As previously noted, this matter was remanded for a formal hearing on the merits in 2006. During the hearing, respondent stipulated to the factual allegations of the Menard matter and agreed that he violated the Rules of Professional Conduct as alleged in Count II of the formal charges. He also agreed to submit the fee dispute with Ms. Menard to the Louisiana State Bar Association’s fee arbitration program.

The ODC introduced documentary evidence at the hearing, including transcripts of respondent’s sworn statements taken November 15, 2001 and April 10, 2006, and called the following witnesses to testify before the committee: Douglas Hebert, Terry Hebert, Anna Manuel, Joseph Young, and Ronald White. Respondent testified on his own behalf and on cross-examination by the ODC. He also called Kathryn Hollier to testify before the committee.

Testimony of Douglas HebeRt

Mr. Hebert represented Charles in the personal injury matter during his partnership with respondent. While he carried primary responsibility for the personal injury matter, the fee was deposited into the partnership and divided between respondent and himself in accordance with the partnership agreement until the partnership was dissolved; thereafter, respondent did not receive any of the fees.

|8After the personal injury matter was settled, Mr. Hebert filed the petition for authority to establish the inter vivos trust on behalf of Mrs. Manuel. His wife, Terry Hebert, became the trustee because she had accounting experience and Mrs. Manuel felt comfortable with her. As trustee, Mrs. Hebert filed annual accountings.

Eventually, Mrs. Manuel decided she wanted to use the trust funds to build a house, but Mr. and Mrs. Hebert did not think it was an appropriate use of the money. Therefore, Mrs. Manuel hired respondent to remove Mrs. Hebert as the trustee. Mrs. Hebert agreed to resign as trustee, and respondent became the trustee. Thereafter, Mr. and Mrs. Hebert had no further involvement in the matter. At the time of Mrs. Hebert’s resignation, none of the trust funds were in an investment portfolio.

Mr. Hebert has been the elected district attorney in Allen Parish since 1991. As district attorney, he employed respondent as an assistant district attorney. However, respondent recently resigned because of allegations of impropriety, stemming from these disciplinary proceedings, published in the local newspaper.

Testimony of Terry HebeRt

Mrs. Hebert prepared accountings of the trust while she was trustee because she considered it part of her job to account for any money that came in for Charles’ benefit. She also accounted for any expenditures and kept receipts. When Mrs. Manuel requested money to build a house for Charles, Mrs. Hebert had some concern about removing Charles from a nursing home where he was being well cared for. She was concerned Mrs. Manuel would not be able to take care of Charles outside of a nursing home. However, soon thereafter, she was served with pleadings requesting that she be removed as trustee, and she resigned instead of continuing to fight her removal. Mrs. Hebert recalled that the request for her removal was based on her |flhaving breached her fiduciary duties. Therefore, to prove she had not breached her duties, she provided a final accounting, which the court approved.

Testimony of Anna Manuel

Mrs. Manuel was 82 years of age at the time of her testimony. She could not recall why she wanted Mrs. Hebert removed as trustee. However, she trusted respondent “with all my heart” and “thought he could walk on water.” Her primary concern was taking care of Charles, which she still does with the help of Charles’ children.

Respondent never informed her how much money was in the trust and how it was being spent. She claimed that, when she would ask, respondent would tell her not to worry and that he was taking care of it. He also never told her the money would run out if they were not careful about how they spent it.

Regarding the campaign contribution respondent obtained from the trust, Mrs. Manuel indicated he never asked her permission and she never told him he could take the money. However, respondent has paid the $700 back to the trust.

Testimony of Joseph Young

Mr. Young is married to Mrs. Manuel’s daughter Carmel and is the chief of police in Oberlin, Louisiana. He testified that respondent was using the trust funds to pay Carmel for her help in caring for Charles. Some time in early 2000, one of the checks bounced, and when Carmel asked respondent about the check, he informed her there was no more money in the trust. Thereafter, the family filed a complaint against respondent with the ODC.

11 (According to Mr. Young, respondent never provided the Manuels with an accounting of the trust. Furthermore, no one in the Manuel family approved the $700 campaign contribution respondent obtained from the trust. However, later, Mr. Young received a cashier’s check in the amount of $700 from respondent, and he assumed the check was repayment of the campaign contribution.

On two occasions, respondent made a $100 contribution to Mr. Young’s chief of police campaign using money from the trust. Mr. Young never repaid the contributions because respondent said he would take care of it. Respondent also never told him it might be improper for him to take campaign contributions from the trust.

Testimony of RoNald White

Mr. White, who audited the trust account for the ODC, was not able to obtain all of the trust records. He obtained records from both respondent and the bank, and using those records, he was able to create an accounting of the trust from 1994 to 2000, when it ran out of money. Neither respondent nor the bank had any records prior to 1994.

Mr. White used copies of the cancelled checks to determine the purpose of the payments. However, some of the can-celled checks were missing, and he was unable to determine the purpose of many payments. He did, however, determine that the expenditures from the trust after respondent became trustee were larger than the expenditures before he became trustee.

Regarding the final $100,000 settlement payment, Mr. White indicated that respondent used the funds to purchase a certificate of deposit, then withdrew funds from the certificate of deposit to pay back three loans. However, Mr. White could not | ^account for one loan in the amount of $8,030 because no corresponding funds were ever deposited into the trust account even though funds from the certificate of deposit were used to pay back the loan. Respondent could not provide him with any information other than to tell him to get a copy of the loan check from the bank that issued the loan; however, Mr. White was unable to get a copy of the check.

Regarding the $700 campaign contribution, respondent did not deny taking the money. Respondent also told him Mrs. Manuel had authorized the contribution, which Mrs. Manuel has denied.

Respondent’s Testimony at Sworn Statements and Hearing

Respondent testified that he and Mr. Hebei-t were law partners from 1979 to early 1982. Charles’ case was settled in late 1980, and settlement checks began to be paid while he and Mr. Hebert were still partners. He received a portion of the attorney’s fees that were paid while he and Mr. Hebert were still partners, despite doing only a limited amount of work on the case. However, when the partnership ended, Mr. Hebert kept the case as his own, and respondent no longer received any attorney’s fees from it.

After his partnership with Mr. Hebert ended, respondent began representing Mrs. Manuel, who wished to use trust funds to build a house so she could take Charles out of the nursing home. He admitted that Mrs. Hebert “did everything right” as trustee. However, when Mrs. Hebert took issue with Mrs. Manuel’s request to buy land and build a house using trust funds, Mrs. Manuel requested that he help her take over the administration of the trust from Mrs. Hebert. Accordingly, respondent filed 112a petition to revoke the trust and allow Mrs. Manuel to administer Charles’ affairs. Then he amended the petition to withdraw the request to revoke the trust and instead requested that Mrs. Manuel replace Mrs. Hebert as trustee. He also admitted to filing a petition on behalf of Mrs. Manuel individually requesting that Charles pay her $500 a month. Although he recognized that Mrs. Manuel, as curatrix, had a fiduciary duty to preserve Charles’ funds, he stated that the only purpose of the claim was to get Mrs. Hebert removed as trustee. Mrs. Manuel’s conflicted position of making a claim on Charles’ funds, which she, as curatrix, had a fiduciary duty to protect, did not occur to him. Thereafter, Mrs. Manuel requested respondent become trustee. Mr. Hebert told him Mrs. Hebert did not want to be involved anymore and she would withdraw her opposition if Mr. Hebert received the balance of his attorney’s fee from the structured settlement. Respondent agreed, and they wrote up an agreement modifying the payment schedule of the remaining fee of $103,666.66, which the court approved. On May 16, 1983, the judge signed the order removing Mrs. Hebert as trustee and appointing respondent as successor trustee. This was the first and only time respondent acted as the trustee of a trust.

Regarding the purchase of the land and the building of the house for Charles, respondent could not remember if he obtained court approval before doing so and could not produce any evidence to show such court approval. The trust did not have enough money for such an expenditure; therefore, he obtained a loan for the trust and mortgaged the property. He was not aware of the provision in the trust instrument l1sthat stated none of the trust’s property could be mortgaged. Respondent then used money from the trust to repay the mortgage loan.

As trustee, respondent used the money from the structured settlement to pay Charles’ expenses: the mortgage payment (which loan was paid off in less than ten years), utilities, property taxes, homeowner’s insurance, nursing expenses (Mrs. Manuel received $250 per week and her daughter Carmel received $210 per week), prescription drugs, food and clothing for Charles, car insurance and gasoline, presents for Charles’ children, and $7,000 to $8,500 for medical treatment for Charles’ child. Respondent acknowledged that he had a fiduciary duty to make sure the funds went to the care of Charles, but he was acting in accordance with Mrs. Manuel’s requests in paying the bills. He thought he was doing what was best for Charles because he was with his family, who was taking care of him. He also admitted to giving Mr. Young campaign contributions from the trust account, stating that he was helping Charles’ family member. Furthermore, he considered the Manuels to be above him in directing how the trust funds should be expended because the money was their son’s money and their family’s money.

Respondent acknowledged that he never provided an annual accounting of the trust, testifying that he “just neglected it” and had no excuse for his neglect. The only records he kept were the checkbook, and he did not have any records prior to 1994. He believed the records of the prior years were in a box in his office closet, but when he looked for them at Mr. White’s request, he could not find them. He believed they may have been disposed of during a remodeling of his office in 1999 or 2000. He did not keep a separate ledger for the trust, and the bank did not have records prior to 1994.

|14In 1996, respondent received a $100,000 payment on behalf of Charles as the final payment of the structured settlement. He did not deposit the funds into the trust account. Instead, he used them to purchase a certificate of deposit in the trust’s name at a different bank because he wanted to help the other bank, which was new, build its deposits. When the trust account had insufficient funds, respondent would move money into it from the certificate of deposit. He never invested the other settlement funds because “[a]s the money was coming in, it went out.”

Respondent did not keep records of the $8,030 loan that is unaccounted for, and the lending bank would not provide the records to Mr. White despite having respondent’s permission to do so. He could not explain why there was no record of the loan proceeds being deposited into the trust account. He suggested the money may have been used to pay the $7,000 to $8,500 medical bill for Charles’ child. However, he had no recollection that this is what occurred, nor did he have any documentary evidence. Respondent denied converting the money to his own use, explaining that his “bookkeeping was so poor,” which was why he did not know where the money went.

Regarding the $700 campaign contribution, respondent assumed he had Mrs. Manuel’s permission to write the check because she encouraged him to run for district judge and told him she wanted to help him. However, he never directly asked her for permission to write the check. When he later found out she did not approve of the campaign contribution, respondent wrote a refund check payable to the trust and mailed it to Mr. Young.

The $12,540 in payments respondent received from the trust between 1994 and 1999 were for his trustee fees. His fee was approximately $300 per month. He did l^not seek court approval for the payments of his fee, and Mrs. Manuel never objected to the payments.

When the trust funds were depleted in 2000, respondent covered an overdraft of the account with his personal funds. He did not reconcile the bank statement every month, which was probably why the trust account balance fell below zero and the money eventually ran out. It was only when Charles’ sister Carmel asked him about a bounced check from the trust account that he informed the Manuels there was no more money.

He denied telling Mrs. Manuel that everything was going to be fine. However, he did admit to not keeping the Manuels informed, stating he was embarrassed by his failure to keep an accounting, for which he apologized. He claimed he was so preoccupied and consumed with his personal affairs that he “shut things out of my mind” and let the accounting get away from him. However, he admitted that the rest of his law practice never suffered because of his personal affairs.

At some point during these disciplinary proceedings, Mrs. Manuel and her new attorney requested respondent resign as trustee. Respondent did so “after the last hearing I believe, or even after the Supreme Court ruled in the last proceeding.”

In mitigation, respondent testified that his wife suffers from paranoid schizophrenia and bipolar disorder. He explained that her condition began to deteriorate in 1979, following the birth of their youngest child. Since that time, she has been unable to care for herself and she now resides in an assisted living facility in Houston. Respondent admitted to paying more attention to taking care of his wife and raising five children on his own than he did to his law office.

| , (¡Finally, respondent testified that, a week before his April 2006 sworn statement, he resigned his position at the Allen Parish District Attorney’s Office, where he had worked since September 2001, because he did not want to embarrass the office by going through this disciplinary proceeding.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee rendered its report.

With respect to Count I, the committee made a finding of fact that respondent failed to provide an accounting of the trust, as required by the trust instrument, from the time he began serving as trustee on May 16, 1983 through January 2000, when the trust funds were depleted. It further found he failed to maintain complete and accurate records of his activities as trustee of the trust for the entire time he served as trustee and never communicated to Mrs. Manuel the financial status of the trust prior to the depletion of the trust funds. However, the committee determined that respondent expended the trust funds primarily according to Mrs. Manuel’s requests and instructions.

The committee observed that respondent did not convert or otherwise misappropriate for his own use or benefit any of the trust funds, with the exception of the $700 check written to his political campaign. As to this check, the committee found respondent did not have the express permission or authorization of Mrs. Manuel or any other member of Charles’ family to make a contribution to his political campaign. However, the committee noted that respondent subsequently delivered a $700 check, made payable to the trust, to Charles’ brother-in-law in response to the hearing committee’s original recommendation of sanctions in this matter.

117Based on these findings, the committee determined that respondent violated Rules 1.3, 1.4, 1.15, 8.4(a), and 8.4(c) of the Rules of Professional Conduct with respect to Count I. The committee also determined that respondent acted without any intention to cause harm or injury to Charles in his handling of the trust.

Turning to Count II, the committee noted that respondent stipulated to the factual allegations and rule violations contained in the formal charges. Accordingly, the committee determined that respondent violated Rules 1.3, 1.4, 1.5, and 1.16(a) of the Rules of Professional Conduct as alleged in Count II.

In mitigation, the committee found the following: absence of a prior disciplinary record, personal or emotional problems, cooperation with the ODC in its investigation, and remorse. Furthermore, respondent accepted full responsibility for his actions and inactions as trustee and, at no time, denied the allegations asserted in the formal charges. The committee did not make any reference to aggravating factors in its report.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year, fully deferred.

The ODC filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings with respect to Count I are not manifestly erroneous. The board agreed that respondent violated Rules 1.3, 1.4 and 2.1 by failing to maintain adequate accounting records for the trust and failing to keep Mrs. Manuel informed about the financial status of the trust. It further found respondent violated Rule 1.5 by failing 11sto obtain court or curator approval of the fee he charged as compensation for his duties as trustee, and violated Rule 5.4(c) by merely submitting to requests for money from Charles’ relatives, without question, thereby allowing his professional judgment to be compromised by the requests of other parties.

For purposes of Rule 1.15, the board observed that because of respondent’s poor record-keeping, the history of the trust account from 1983 to 1993 is unknown and unaccounted for. However, the board determined that respondent is presumed to have converted $8,030 of Charles’ funds, as he had control of the funds and possessed them at one point, but they are unaccounted for now. The board found respondent has not offered sufficient evidence to overcome the presumption of his conversion.

With regard to the $700 check written by respondent to his campaign, the board found respondent engaged in a conflict of interest when he unilaterally decided to take money from the trust to fund his political campaign. The board also concluded he violated Rule 8.4(c) by making an unauthorized $700 withdrawal from the trust account for his political campaign, and observed that although he ultimately returned the money to the trust, he did not return the money until after the first hearing committee filed its report on the deemed admitted charges.

With respect to Count II, the board determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The board also noted that respondent planned to submit the matter to fee dispute arbitration.

Turning to the question of the appropriate sanction, the board determined that respondent knowingly violated duties owed to his clients and the legal profession. |19It further determined his conduct resulted in significant harm to Charles, whose trust was completely depleted. It further presumed that respondent converted $8,030 in trust funds for which he could not account. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In mitigation, the board found the following factors: absence of a prior disciplinary record, personal or emotional problems, cooperation with the ODC in its investigation, and remorse. In aggravation, the board found vulnerability of the victims, substantial experience in the practice of law (admitted 1968), and indifference to making restitution.

Considering these factors, the board recommended that respondent be suspended from the practice of law for three years.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters 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). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

|2oWith regard to Count I, we find respondent failed to maintain adequate accounting records for the trust, failed to keep Mrs. Manuel informed about the financial status of the trust, failed to obtain approval of the fee he charged as compensation for his duties as trustee, and allowed his professional judgment to be compromised by the requests of other parties. While each of these conclusions is clearly supported by the record, a few points warrant particular mention. First, this matter is more than a routine case of inadequate accounting and poor trust management. Rather, we are presented with a situation in which respondent’s utter failure to maintain records, coupled with his mismanagement of his client’s trust, resulted in the unaccountable loss of $8,030 in trust funds. Second, respondent’s failure to obtain approval of his fee as trustee was not his only failure with regard to his duties in that capacity. We note that the trust instrument clearly provided that the property of the trust was not to be mortgaged, but nonetheless, respondent did so.

Turning to Count II, respondent has stipulated that he failed to communicate with Ms. Menard, neglected her legal matter, and failed to provide her with an accounting and a refund of any unearned fees. Based on this stipulation, we conclude the ODC has proved that respondent’s conduct violated Rules 1.3, 1.4, 1.5, and 1.16(a) 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 12imitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Considering the two counts of formal charges together, we find the overall baseline sanction for respondent’s misconduct is a lengthy suspension from the practice of law. See In re: Levingston, 96-1379 (La.12/6/96), 685 So.2d 105 (lawyer suspended for two years for mismanagement of a trust, including failure to provide ac-countings to the beneficiaries or maintain trust records); In re: Armato, 07-0500 (La.6/1/07), 958 So.2d 650 (one year and one day suspension imposed upon a lawyer who neglected legal matters, failed to communicate with clients, and failed to protect clients’ interests upon termination of the representation).

Several aggravating factors are present, including a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law. In mitigation, we find respondent does not have a prior disciplinary record, and has suffered personal or emotional problems.

As a trustee, respondent had a fiduciary duty to maintain records of the trust. In that duty, respondent failed abysmally. As such, a penalty in excess of that usually warranted for such misconduct is appropriate. Accordingly, we will suspend respondent from the practice of law for a period of two years.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that John E. Demoruelle, Louisiana Bar Roll number 4860, be and he is hereby suspended from the practice of law for a period of two years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme |S2Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

WEIMER, J., concurs in part, dissents in part.

1,1 concur in the decision the respondent engaged in conduct that subjects him to sanctions, but dissent from the imposition of a two-year suspension. Although I agree that a suspension should be imposed, I dissent because I believe the sanction imposed is excessive.

      .The structured settlement payments were as follows:
      1) $375,000 payment on December 30, 1980;
      2) $3,000 per month for five years commencing January 30, 1981;
      3) $40,000 payment on December 30, 1985;
      4) $4,000 per month for five years commencing January 30, 1986;
      5) $60,000 payment on January 30, 1991;
      6) $5,000 per month for five years commencing on January 30, 1991; and 7)$100,000 final payment on January 30, 1996.

      . From the record, it appears that nothing came of this claim.

      . Respondent was no longer receiving a portion of the attorney's fees as he and Mr. Hebert had ended their partnership.

      . Respondent had been a candidate for judge of the 33'<* Judicial District Court. In a letter to the ODC’s auditor, respondent asserted that ‘‘[Charles], through his family authorized the contribution.” However, when contacted by the ODC to confirm respondent's statement, Mrs. Manuel was adamant that she had not authorized the payment.

      . In 1999, respondent did not send the notification until May 27th. In 2000, respondent did not send the notification until June 26th.

      . Mrs. Hollier is a close friend of the Demor-uelle family who has helped to provide care for respondent's mentally ill wife.

      . Respondent acquired the services of an accident reconstruction expert and took him to the accident site. He was also consulted about Charles' wife's claim on the settlement, which resulted in a $40,000 payment to her.

      . The payment schedule, as modified on May 13, 1983 and approved by the court on May 16, 1983, was as follows:
      A) Immediate payment of $35,000;
      B) $500 per month from June 1, 1983 until
      December 30, 1985;
      C) $25,000 on December 30, 1985; and
      D)$1,000 per month from January 30, 1986 until the entire fee of $103,666.66 is paid.

      . Respondent stated all of the nursing expense checks for Mrs. Manuel and Carmel were made out to cash because they were “obviously not reporting it on their income tax.”

      . During the time he was trustee, respondent also did insurance defense work for other clients, which work he was able to complete to their satisfaction.

      . The board noted that comment (b) of La. R.S. 9:2181, which deals specifically with trustee compensation, states if the trust in-stmment does not state the amount of the fee, then the fee charged by the trustee should be reviewed by the proper court.


text:
    In re Kenisha Lasha PARKS.
    No. 2008-B-3006.
    Supreme Court of Louisiana.
    April 24, 2009.
   hATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kenisha Lasha Parks, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

While driving on the Crescent City Connection at approximately 8:25 a.m. on September 19, 2006, respondent rear-ended a vehicle driven by Dawn Wedge. Respondent provided Ms. Wedge with a business card indicating she is a licensed attorney and containing her cell phone number and e-mail address. On the business card, respondent hand-wrote her home address and work telephone number. She also provided Ms. Wedge with the name of her automobile insurance company and the policy number, and requested that the police not be contacted regarding the accident. Because respondent is an attorney, Ms. Wedge agreed to this request.

Thereafter, Ms. Wedge repeatedly attempted to contact respondent at her work and cell phone numbers. Although she left several messages, respondent never returned Ms. Wedge’s calls. Ms. Wedge then attempted to initiate a claim using the insurance information respondent provided. However, Safeco Insurance Company, 12respondent’s purported insurer, advised Ms. Wedge that respondent did not have insurance coverage on the date the accident occurred.

In November 2006, Ms. Wedge filed a complaint against respondent with the ODC. In a sworn statement, Ms. Wedge was able to give accurate descriptions of both respondent and the car respondent was driving at the time of the accident. Ms. Wedge subsequently made a claim for restitution of $613.18 in damages to her vehicle from the Louisiana State Bar Association’s Client Assistance Fund.

Despite being mailed four copies of Ms. Wedge’s complaint, respondent failed to respond. On February 8, 2007, respondent was personally served with a copy of the complaint and again failed to respond. The ODC then issued a subpoena to take respondent’s sworn statement on April 4, 2007. Despite being personally served with the subpoena, respondent failed to appear. On April 12, 2007, respondent finally responded to the complaint by submitting a notarized affidavit in which she attested as follows:

AFFIDAVIT

I hereby certify that I was not involved in a car accident with Dawn Wedge on September 19, 2006. In fact, at the time of alleged accident I was at 2700 Tulane Avenue in the Criminal District Court of Orleans Parish Section D with Judge Frank Marullo.

In subsequent responses to the ODC, respondent claimed that, in September 2006, she was working as an assistant district attorney in New Orleans and usually arrived at work at 8:00 a.m. Although she could not recall the exact time she arrived at work on the date of the accident, she indicated that she “ran a full docket [that day] and then conducted a trial that lasted until 10:00 at night.” However, court records ^indicated that jury selection for the trial respondent was involved in that day did not begin until 2:55 p.m. Moreover, respondent acknowledged that the business card in Ms. Wedge’s possession was hers and the handwriting on the card was hers as well. However, respondent could offer no explanation how Ms. Wedge came to be in possession of the card.

On April 27, 2007, respondent provided the ODC with a sworn statement. During the sworn statement, respondent admitted that there was no reason why she could not appear for the first sworn statement, indicating that she believed she had the dates wrong and acknowledging that she failed to appear. She also indicated during the sworn statement that she was licensed to practice law in Georgia. However, the ODC later contacted bar officials in Georgia, who advised that respondent was neither admitted to the bar nor had she applied for admission. Respondent further informed the ODC that she had current automobile insurance with GEICO. However, GEICO later informed the ODC that respondent’s policy was cancelled on March 11, 2007 for non-payment of the premium.

DISCIPLINARY PROCEEDINGS

In February 2008, the ODC filed three counts of formal charges against respondent, alleging that her conduct as set forth above violated Rules 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 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 |4as 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 the 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 opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the committee’s consideration. However, she did later appear at oral argument before a panel of the disciplinary board.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that all of the facts contained in the formal charges have been deemed admitted and proven by clear and convincing evidence. The committee also determined that the testimonial and documentary evidence prove that: 1) respondent was involved in an accident wherein she was liable for damage caused to Ms. Wedge’s automobile; 2) Ms. Wedge relied on the fact that respondent was an attorney and would uphold the law and honor the terms of the agreement she made at the time of the accident; 3) Ms. Wedge, in reliance upon respondent’s assertions, agreed to forego contacting law enforcement officials to obtain an accident report; and 4) respondent misrepresented that she was not involved in an accident with Ms. Wedge despite the fact that she is unable to provide an explanation as to why Ms. Wedge is in possession of her business card containing her handwritten notes of her personal and automobile insurance information. Additionally, the committee found that 1,-,respondent impermissibly operated her automobile without insurance coverage on the date of the accident. The committee further found that respondent failed to cooperate with the ODC during the pen-dency of its investigation, thereby taxing an overburdened system, needlessly causing additional expenditures, and extensively delaying the proceeding. Respondent also, while under oath, misrepresented that she was licensed to practice law in Georgia and misrepresented that her automobile insurance policy with GEICO was current. The committee further found that respondent illegally operated her automobile without insurance coverage on the date of her sworn statement and misrepresented to the ODC’s investigators that she was licensed to practice law in Alabama.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Additionally, the committee determined that respondent violated Rule 8.4(b) with respect to her purported GEICO insurance coverage in that she was operating her automobile illegally (without insurance) at the time of her sworn statement, which was not alleged in the formal charges.

The committee determined that respondent knowingly made false statements of material fact and described her numerous misrepresentations as “a deliberate pattern of deceit.” The committee also determined that respondent knowingly and intentionally failed to cooperate with the ODC in its investigation. Additionally, the committee found that respondent’s misrepresentations, especially those made while under oath, “suggest a pattern of conduct designed to evade her responsibilities and mislead others about her credentials.”

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day.

|(SNeither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s factual findings do not appear to be manifestly erroneous with one correction — respondent lied about being licensed to practice law in Alabama, but she did not do so while under oath. The board determined that the committee properly applied the Rules of Professional Conduct, with the exception of Rule 8.4(b). The board recognized the fact that respondent operated her vehicle without insurance on two occasions, which is a technical criminal violation of La. R.S. 32:865. Nonetheless, the board determined that this type of criminal violation is not within the scope of Rule 8.4(b), reasoning that it was not the intention of this court to sanction attorneys for routine traffic violations.

The board determined that respondent knowingly and intentionally violated duties owed to the public and the legal profession. She caused harm to the disciplinary system and the integrity of the profession. She also caused actual harm to Ms. Wedge, whose vehicle was damaged in the accident. Based on the AJBA’s 17Standa.rds for Imposing Laivyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board recognized a dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and indifference to making restitution. In mitigation, the board found the following factors: absence of a prior disciplinary record and inexperience in the practice of law (admitted 2005).

Considering the issue of an appropriate sanction, the board cited In re: Bordelon, 04-0759 (La.1/7/05), 894 So.2d 315, and People v. Small, 962 P.2d 258 (Colo.1998). In Bordelon, this court suspended an attorney for sixty days for making false statements in connection with a disciplinary matter. In Small, the Colorado Supreme Court publicly censured an attorney who lied under oath about having insurance on his car at the time of a car accident during a trial regarding that incident. The board determined that, while similar, respondent’s misconduct is “considerably more egregious” than the misconduct in Bordelon and Small because she has failed to acknowledge her misrepresentations or express remorse, has failed to cooperate with the ODC or participate in this matter, and has engaged in an extensive pattern of deceit and misrepresentation. The board also noted that, when respondent appeared at oral argument before a board panel, she was ineligible to practice law. Furthermore, her oral argument was inconsistent and contrary to the facts in the | ¿record. Overall, the board was “deeply troubled” by the degree of respondent’s misrepresentations.

Accordingly, the board recommended that respondent be suspended for one year and one day, which will require her to demonstrate that she has the requisite honesty and integrity to practice law when and if she applies for reinstatement.

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).

This matter initially came to the ODC’s attention by way of a complaint filed by Ms. Wedge, the victim of an automobile accident caused by respondent. Ms. Wedge complained that respondent had failed to address her responsibility for the accident, and had failed to maintain liability insurance coverage on her vehicle on the date of the accident. While Ms. Wedge was rightfully concerned about respondent’s conduct, we do not find that, standing alone, such conduct by an attorney rises to a level warranting discipline by this court. However, respondent’s failure to respond to the complaint on several occasions, and her subsequent misrepresentations to the ODC, are a separate issue altogether. Such conduct is a violation of the Rules of Professional Conduct and does warrant serious discipline.

| aThe deemed admitted facts and documentary evidence in this matter support a finding that respondent failed to cooperate with the ODC in its investigation of Ms. Wedge’s complaint and made numerous misrepresentations to the ODC, both while under oath and in written and verbal statements. Respondent’s conduct is in violation of Rules 8.1(a), 8.1(c), 8.4(a), and 8.4(c) 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 acted knowingly and intentionally in violating duties owed to the public and the legal profession. She caused harm to the disciplinary system as well as the legal profession and has never acknowledged her wrongfulness. The baseline sanction for this type of misconduct is a period of suspension.

The record supports the aggravating factors of a dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, and refusal to acknowledge the wrongful nature of the conduct. The only mitigating factors are the absence of a prior disciplinary record and inexperience in the practice of law.

110Given the numerous aggravating factors present in this case, especially respondent’s continued failure to acknowledge the wrongful nature of the conduct, we will impose a one year and one day suspension from the practice of law, which will necessitate an application for reinstatement.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kenisha Lasha Parks, Louisiana Bar Roll number 29645, be and she hereby is suspended from the practice of law for one year and one day. It is further ordered that respondent shall repay the Louisiana State Bar Association’s Client Assistance Fund any amounts paid to Dawn Wedge on her behalf. 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.

      . Respondent's automobile insurance policy with Safeco lapsed prior to the date of the accident due to non-payment of the premium,

      . In a prior interview with the ODC's investigators, respondent represented that she was licensed to practice law in Alabama. A subsequent check indicated that respondent was not licensed in Alabama.

      . La. R.S. 32:865 provides in pertinent part:
      A. Any person knowingly operating a motor vehicle and any owner allowing a motor vehicle to be operated, when such motor vehicle is not covered by the security required under R.S. 32:861 shall, upon conviction, be fined not more than five hundred dollars.
      B. (1) If the vehicle is in any manner involved in an accident within this state, when such motor vehicle is not covered by the security required under R.S. 32:861, the owner thereof shall, upon conviction, be fined not more than five hundred dollars, shall have the registration of the vehicle revoked for a period of sixty days, and shall have his driving privileges suspended for a period of sixty days.

      . Respondent was certified ineligible on October 2, 2008 for failing to file her 2008 trust account disclosure and overdraft notification authorization. The board panel notified her of this fact at oral argument on October 23, 2008. At the conclusion of oral argument, respondent executed the disclosure form and was certified as eligible as of October 23, 2008.


text:
    STATE of Louisiana v. Ryan O’Neal WOODARD.
    No. 2008-K-0606.
    Supreme Court of Louisiana.
    May 5, 2009.

      James D. Caldwell, Attorney General, Joseph L. Waitz, Jr., District Attorney, Ellen Marjorie Daigle, Assistant District Attorney, for applicant.
    Greenburg & Brown, Paul Eugene Brown, Douglas Henry Greenburg, Hou-ma, Damon J. Baldone & Associates, Constance Lynnette Johnson, Houma, for respondent.
   PER CURIAM.

liThe state charged defendant with possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. On October 19, 2005, a Terrebonne Parish jury rendered a verdict of guilty as charged. Thereafter, defendant filed a motion for a new trial claiming, inter alia, that his trial attorney had rendered ineffective assistance of counsel in failing to call two witnesses, Marcus Stoves, a lifetime friend of defendant, and Chandra Lewis, defendant’s girlfriend of several years, who could have provided the jury with a reasonable hypothesis of innocence negating the state’s case that defendant had constructive possession of the firearm at the time of his arrest. On July 12, 2006, the trial court held a hearing on the motion at which Stoves, Lewis, defendant, and his trial attorney, Tedrick Knightshead, all testified. The court took the motion under advisement and on July 14, 2006, denied defendant a new trial on grounds that “there’s been no injustice in this ease.” Thereafter, the court sentenced defendant to 10 years 12imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The court also imposed a $1,000 fine as well as court costs.

On appeal, a divided panel of the First Circuit reversed defendant’s conviction and sentence. State v. Woodard, 07-0402 (La.App. 1st Cir.2/20/08)(unpub’d)(Whip-ple, J., dissenting). A majority on the panel concluded that the trial court erred in denying the motion for a new trial because “[t]he failure to present testimony of witnesses that would have changed the outcome of the proceeding constitutes deficient performance and cannot be considered strategic.” Id., 07-0402 at 16. We granted the state’s application to reverse that decision because we agree with Judge Whipple’s dissent that defendant’s trial attorney made a sound strategic decision not to call the witnesses.

The evidence presented at trial was straightforward and undisputed. On March 31, 2005, Terrebonne Parish Narcotics Task Force officers responded to a call from the manager of Chateau Creole Apartments in Houma about suspected drug activity in their parking lot. The information came from the maintenance supervisor for the complex who had been walking around the parking lot, spotted a Honda Accord which he deemed out of place, and smelled marijuana coming from the vehicle. He also observed a black male exit the vehicle and enter apartment A24, which was rented to Chandra Lewis and Melanie Williams. When the task force officers arrived, they spoke to the maintenance supervisor and ran the plate number on the vehicle, determining that it was registered to the defendant.

After a K-9 alerted to the presence of narcotics near the driver’s side door of the Honda, Agent Wes Hanlon approached apartment A24 and knocked on the door several times. Defendant finally came to the door, opening it only partially. |3In short order, Agent Hanlon placed his foot between the door and the frame to keep the door open after he smelled marijuana wafting from the interior, gained entrance to the apartment, and prevailed on defendant, who initially identified himself as his brother, to give his true name and to acknowledge ownership of the Honda parked outside.

As the agent continued to question him, defendant further admitted that he had sold marijuana from the vehicle in the past and had smoked some earlier in the day while in that car. Defendant also indicated that the officers could search the vehicle, but advised them that they might find a gun next to the driver’s side door “down by the seat.” He explained that the weapon belonged to a friend who “left it there a few weeks ago.” Defendant then informed Agent Hanlon, “I’ll get the keys,” spun around and moved briskly into the bedroom, closing the door behind him. Alarmed by the sudden movement and by what appeared a rapidly escalating situation, Agent Hanlon followed defendant through the door and observed him kneeling at the side of the bed. The officer ordered defendant to his feet and escorted him out to the kitchen area. Agent Han-lon then frisked and handcuffed defendant and informed him that the officers would seek a warrant for the apartment and car. Defendant again volunteered to retrieve the keys to the Accord and after the officer led him back into the bedroom, he nodded to the bed and informed the officer the keys were between the mattress and box springs. The agent lifted up the mattress and found the keys. He then escorted defendant out of the apartment, put him in another patrol unit, and went to secure the warrants.

By the time Agent Hanlon arrived back at the apartment, Chandra Lewis and her roommate had also returned. They were accompanied by defendant’s brother who was dating Lewis’s roommate. The officers brought them all inside 14and sat them in the living room while they executed the warrant for the premises. During the search, Agent Hanlon retrieved a Ruger 40 millimeter semi-automatic handgun from under the bed where he had observed defendant kneeling earlier. According to the officer, he found the gun “within a hands reach” under the bed, less than a foot away from where he was located. The officer observed that the clip was loaded and that a round had been chambered. In addition, the officers found defendant’s identification and some marijuana in the bedroom. However, they did not find a weapon in the Honda despite defendant’s earlier statement, which Agent Han-lon took “as him being certain that he had one in his possession at some point during the day.” The agent testified that he questioned the occupants about the gun and they all denied any knowledge of the weapon.

Agent Hanlon testified as the sole witness in the state’s case in chief. For its part, the defense also called a single witness, a crime scene investigator for the Terrebonne Parish Sheriffs office who had examined the Ruger handgun at the request of the District Attorney’s office. The investigator was unable to identify any of the latent prints on the weapon and therefore could not establish that defendant had ever handled the gun. Defense counsel Knightshead focused on that testimony during closing argument, and on the state’s failure to call either Chandra Lewis or her roommate to testify with respect to ownership of the gun. He also invited jurors to consider other innocent explanations, including a bad back, for why Agent Hanlon found defendant kneeling by the side of the bed, which concealed the Ruger hidden under it on the floor, but also contained the ignition keys to the Honda that defendant had volunteered to obtain for the officer.

At the hearing on the motion for a new trial, the defense called Marcus Stoves, defendant’s life-long friend, who owned the gun in question and produced Ra receipt showing that he had purchased the handgun in 2000. In May 2004, Stoves, a member of the Louisiana National Guard, was deployed to Baghdad in Iraq. Because he could not bring the gun with him, Stoves decided to give it to Chandra Lewis, whom he had known even before she had begun dating defendant. The occasional visit of small children to his grandmother’s household, where Stoves resided, prompted him to give the gun to Lewis for safekeeping. Stoves testified that when he gave the firearm to Lewis, “the magazine was loaded but there wasn’t anything in the chamber.” Although Stoves had been redeployed back to Louisiana from Iraq by the time of trial, he was at Fort Polk in the process of demobilizing in October 2005, and could not have appeared at trial.

Chandra Lewis followed Stoves to the stand at the hearing and confirmed that he had given her the loaded Ruger which she then concealed underneath her bed without defendant’s knowledge. According to Lewis, she placed the gun as far as she could under the head ■ of bed against the wall “to where you have to get underneath it to reach it .... you would have to actually lay down to get underneath to get it.” Once she placed the weapon under the bed, “that was it,” she never intentionally moved it from that location. The hiding place was among boxes and games also stored under the bed. Lewis estimated that she and defendant slept together in that bedroom two to three times a week over the course of their relationship and testified that she never traded bedrooms with her roommate to share with defendant’s brother. According to Lewis, the officers never asked her or the other occupants of the apartment about the ownership or possession of the gun. Unlike Stoves, Lewis would have been available to testify at defendant’s trial, had trial counsel subpoenaed her. However, although | ^defendant was out on bail pending trial, he did not tell her about the trial and Lewis did not receive a subpoena to appear in court.

Defense counsel Knightshead acknowledged at the hearing that he was fully aware of the exculpatory information that Stoves and Lewis possessed. In fact, he had prepared an affidavit for Stoves to execute in May 2005, several months before trial, attesting to his ownership of the gun and that he had given it to Lewis for safekeeping while he was in Iraq. However, the attorney testified that he made a strategic decision not to call Stoves and Lewis as witnesses because he felt that the state’s case was weak and that to do so would have established a link between the gun and defendant through his long-term relationship with Lewis and frequent use of her bedroom as to which neither the state nor the jury was otherwise aware. According to Knightshead, he discussed that strategy with his client and defendant had agreed to it. Defendant was also “emphatic” about not testifying at trial.

Under prompting by the state, Knights-head conceded that he had a second strategic reason for not calling either witness but was reluctant to disclose it because the information implicated the attorney-client privilege. After the court ruled that defendant had waived the privilege by asserting a claim of ineffective assistance, a ruling not disputed by defendant’s post-conviction counsel, Knightshead testified that defendant had confided to him that “he actually possessed the weapon.” Thus, “by calling anybody else to testify that they possessed the weapon,” the attorney feared that he would “be allowing perjured testimony to take place. And I just wasn’t going to do that.” Knights-head further testified that after speaking to defendant and Lewis, he knew “for certain she knew.”

17Finally, defendant testified at the hearing and denied that he ever told Knights-head that he possessed the firearm in question, or that he had agreed to a no-witness defense. As for his own testimony, defendant stated that he simply acceded to the advice of his attorney not to take the stand because Knightshead informed him that he generally did not “like to put his defendants on ... trial,” and that, because defendant was a convicted felon, “he didn’t think it was ... in my best interest to testify,” although the attorney then entered into a stipulation with the state for the jury that defendant was a convicted felon. According to defendant, his relationship with Knightshead had soured after they became embroiled in a dispute over the attorney’s fee. Under questioning by the state, defendant conceded he could not account for the fact that Agent Hanlon found the handgun not only with the magazine loaded but with a bullet chambered, although Stoves had testified that he had given the gun to Lewis with the chamber empty. Defendant also could not account for the agent’s ready access to the gun simply by reaching under the bed, although Lewis testified that she had taken pains to shove it as far back as she could along the base of the headboard.

In denying the motion, the trial court noted that defendant was not entitled as a matter of La.C.Cr.P. art. 851(3) to a new trial on grounds of newly discovered evidence with respect to the exculpatory information possessed by Stoves and Lewis. Although Stoves had not been available for trial, the court considered Lewis the more important witness and she had been readily available to the defense. However, because Lewis was known to defense counsel and available for trial, the court considered whether Knightshead’s decision not to call her as a witness along with Stoves constituted ineffective assistance that would support the granting of a new trial in the interests of justice as a matter of La. C.Cr.P. art. |s851(5), although the court recognized that claims of ineffective assistance are ordinarily matters for post-conviction proceedings. The court observed that if Lewis had testified, given Agent Hanlon’s account that defendant had gone into the bedroom to retrieve his car keys which were, in fact, on or in the bed under which Lewis had concealed the weapon, ostensibly without defendant’s knowledge, that “it would have been extremely difficult for the jury to have ruled out a reasonable theory of innocence: that is, that Mr. Woodard had gone in the bedroom to get the car keys.” Thus, based on its review of the case, the court observed that “the jury, if it had had the information that was presented by Ms. Lewis and Mr. Stoves, most certainly could not have ruled out one reasonable theory of innocence; and that is that the gun belonged to Mr. Stoves, that it was in the possession of Ms. Lewis, that Mr. Woodard did not have any knowledge that the gun was there, and, therefore, he could not have been guilty of the crime charged.”

However, the court also noted the specific provision in La.C.Cr.P. art. 851 that a new trial shall not be granted on any ground unless the defendant shows that “an injustice has been done.” Accepting as credible Knightshead’s testimony about defendant’s admission, the court concluded, without specifically placing its ruling in the context of defendant’s ineffective assistance claim, that “[t]he jury’s verdict, despite all the shortcomings of the trial, appears to be just in that the defendant knew the gun was there.”

In reversing that ruling on appeal, the majority on the First Circuit panel observed that given the trial court’s conclusion that the testimony of Stoves (assuming he were available to testify) and Lewis would have changed the outcome of trial, “the prejudicial nature of the trial counsel’s deficiency in | (¡performance is evident .... and cannot be considered strategic.” Woodard, 07-0402 at 16. Dissenting, Judge Whipple took the view that “the trial court considered [Knightshead’s] testimony for the proper purpose of determining whether effective assistance of counsel had been provided, i.e., whether trial counsel had strategic reasons for not calling the witnesses noted by the defendant.” Woodard, 07-0402 at 2 (Whipple, J., dissenting). From that perspective, “the defendant failed to establish a deficiency in his trial counsel’s performance, preparation, and presentation of a defense, as would entitle him to a new trial.” Id.

A trial court’s judgment granting or denying a new trial in the interests of justice as a matter of La.C.Cr.P. art. 851(5) is ordinarily not subject to review, State v. Miller, 05-1111, p. 2 (La.3/10/06), 923 So.2d 625, 626; State v. Toomer, 395 So.2d 1320, 1328 (La.1981), and, as the trial court in the j^resent case acknowledged, claims of ineffective assistance of counsel are generally reserved for post-conviction proceedings. State v. Deloch, 380 So.2d 67, 68 (La.1980). Nevertheless, defendant expressly based his motion for a new trial on a claim of ineffective assistance of counsel, the trial court conducted a full evidentiary hearing on the question, and the court ultimately made its ruling that the interests of justice did not require a new trial in that context. The court of appeal thus properly addressed the trial court’s judgment as a ruling on the merits of 1^defendant's claim of ineffective assistance of counsel on a record adequate for that review. Cf. State v. Ratcliff, 416 So.2d 528, 530 (La.l982)(“[T]he trial judge held a hearing on the motion for a new trial during the course of which the allegation of ineffective assistance of counsel was explored in detail. Since the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, in the interest of judicial economy we will address the issue now.”).

However, we agree with Judge Whipple that the majority of the panel erred in assessing the probable impact of a defense based on the testimony of Stoves and Lewis within the analytical framework established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for resolving claims of ineffective assistance of counsel, under which a defendant must show both that his attorney’s performance was professionally unreasonable and that he was prejudiced by that conduct because it undermined confidence in the proper functioning of the adversary process, without regard to the ethical duty owed by Knightshead to the tribunal to avoid the knowing use of false evidence.

As a general rule “[w]hen examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitu-tionalize particular standards of professional conduct and thereby intrude into the state’s proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts.” Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 993, 89 L.Ed.2d 123 (1986). However, with respect to the knowing use of false evidence, “virtually all of the sources speak with one voice.” Id., 475 U.S. at 166, 106 S.Ct. at 994. Louisiana is among that chorus of voices. See La. State Bar | nAss’n Rules of Professional Conduct, Rule 3.3(a)(3)(a lawyer shall not “offer evidence that the lawyer knows to be false.”); Rule 3.4(b)(a lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely.... ”). “In short,” Whiteside observes, “the responsibility of an ethical lawyer as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.” Id., 475 U.S. at 174, 106 S.Ct. at 998; cf. Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971)(“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.”).

Given that premise, the Supreme Court held in Whiteside that when defense counsel prevailed on the defendant not to testify that he saw the victim with a gun or something metallic in his hand, an assertion the attorney believed, on the basis of statements made to him by the defendant, would be absolutely false, he made an unassailable strategic decision under Strickland, although it detracted from defendant’s testimony that he killed in self-defense. “Whether he was persuaded or compelled to desist from perjury,” the Court observed, “Whiteside ha[d] no valid claim that confidence in the result of his trial ha[d] been diminished by his desisting from the contemplated perjury.” Id., 475 U.S. at 175, 106 S.Ct. at 998-99. The Court added that “[ejven if we were to assume that the jury might have believed his perjury, it does not follow that White-side was prejudiced.” Id., 475 U.S. at 175-76,106 S.Ct. at 999.

112Thus, in the present case, to the extent that defendant’s claim of ineffective assistance of counsel rests on the assertion that he would have been acquitted, or at least would have had a reasonable likelihood of an acquittal, if he had been allowed to present false testimony, either in his own right or through Chandra Lewis, whom Knightshead was certain also knew defendant had taken possession of the weapon, he “claims a right the law simply does not recognize.” Id., 475 U.S. at 186, 106 S.Ct. at 1004 (Blackmun, J., concurring). With respect to Knights-head’s testimony concerning defendant’s admissions to him, the trial court’s credibility determination is subject to a deferential standard of review. State v. Hampton, 98-0331,- p. 18 (La.4/23/99), 750 So.2d 867, 884 (“As a general rule, deferential standards of review apply to factual and other trial determinations, while determinations of law are subject to de novo review.”).

However, we note that the trial court did not specifically address the credibility of Knightshead’s testimony that he was sure Chandra Lewis also knew defendant had taken possession of the gun. It is not clear from the attorney’s testimony whether his certainty in that regard stemmed from a direct assertion of fact by Lewis or from what he merely surmised was the truth in his conversations with the witness and defendant. In the latter case, nothing Stoves and Lewis had to say was necessarily known to be false by Knightshead or inconsistent with the possibility that Lewis subjectively but mistakenly believed she had successfully hidden the gun given to her by her friend for safekeeping while he was in Iraq, although defendant had in fact found the gun and taken possession of it. Cf. Whiteside, 475 U.S. at 189, 106 S.Ct. at 1005 (“Except in the rarest of cases, attorneys who adopt the role of the judge or jury to determine the facts pose a | isdanger of depriving their clients of the zealous and loyal advocacy required by the Sixth Amendment.”)(Blackmun, J., concurring) (internal quotation marks, citation, and footnote omitted).

Nevertheless, even assuming ar-guendo that an attorney may ethically present a defense he knows is false based on the testimony of witnesses who believe it true, Knightshead did not err professionally in deciding not to call Stoves and Lewis at trial. The attorney faced not only evidence that defendant was observed in immediate proximity of the gun shortly before his arrest but also defendant’s admission to Agent Hanlon that he had been driving around with a firearm stored in his car for several weeks after another friend had given it to him for safekeeping, virtually a confession to the offense. Cf. State v. Major, 03-3522, p. 8 (La.12/1/04), 888 So.2d 798, 802 (“The evidence at trial established that defendant had exercised dominion and control over the cocaine hidden underneath the dashboard of the car by virtue of his dominion and control over the vehicle as the driver and professed renter”)- Knightshead could reasonably decide not to focus jurors’ attention on that admission by presenting evidence inviting them to consider the long odds that another of defendant’s friends, a lifetime acquaintance, had entrusted another gun to his longtime girlfriend for safekeeping in the room he frequently used, under circumstances in which the gun had apparently moved from its original hiding place and in which a round had been chambered after Stoves had given it to Lewis, who had no further use for it, all ostensibly without his knowledge. That a particular strategy fails does not mean that it was professionally unreasonable. State v. Felde, 422 So.2d 370, 393 (La.1982).

In these circumstances, we are persuaded that even if he could have ethically offered the testimony of Stoves and Lewis, counsel’s strategic decision [ 14not to do so and to rely on exploiting any weaknesses in the state’s case was not only one that any reasonably competent attorney practicing criminal law could have made but also one that did not prejudice the defendant by undermining the adversary process counted on to produce a just and reliable result. Strickland, 466 U.S. at 687,104 S.Ct. at 2064.

Accordingly, the decision of the court of appeal is reversed, defendant’s conviction and sentence are reinstated, and this case is remanded to the district court for execution of sentence.

DECISION OF COURT OF APPEAL REVERSED; DEFENDANT’S CONVICTION AND SENTENCE REINSTATED; CASE REMANDED.

JOHNSON, J., dissents.

      . As an additional ground for granting defendant relief, post-conviction counsel argued below, and he contends here, that Knightshead also rendered ineffective assistance by failing to submit special requested charges to the court refining the elements of constructive possession for jurors to emphasize that defendant's mere proximity to the handgun did not mean, without his awareness of its presence and his intent to possess it, that he had dominion and control over the weapon. However, defendant did not allege the error in his motion for a new trial and the trial court did not address it in ruling on the motion. Accordingly, the court of appeal majority specifically declined to address this claim in its decision because it was not properly raised in the trial court, Woodard, 07-0402 at 11-12, and we do not consider it here.

      . However, the district court is directed to amend the sentence to delete the requirement that defendant serve an additional year imprisonment on default of payment of fine and court costs "at hard labor.” See Woodard, 07-0402, p. 2, n. 2 (Whipple, J., dissenting)(La.C.Cr.P. art. 884 authorizes only "imprisonment” not "imprisonment at hard labor” in default of payment of fine and costs)(citing State v. Banks, 97-2257, p. 7 (La.App. 1st Cir.9/25/98), 721 So.2d 24, 27 writ denied, 98-3210 (La.4/23/99), 742 So.2d 877).