text:
    In re Justice of the Peace Stacie P. MYERS, District 4, Parish of Pointe Coupee, State of Louisiana.
    No. 2011-O-0874.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      Office of Special Counsel, Henry Nathan Bellamy, Special Counsel, Barbara Lynn Edin, Assistant Special Counsel, for Applicant.
    Stacie P. Myers, for Respondent.
    Nancy E. Rix, Commission Counsel.
   VICTORY, J.

11 This matter arises from a recommendation of the Judiciary Commission of Louisiana (the “Commission”) regarding Justice of the Peace Stacie P. Myers’ failure to comply with the financial disclosure requirements of Louisiana Supreme Court Rule XXXIX. The Commission found that Justice of the Peace Myers failed to file her 2009 personal financial disclosure statement timely, thereby subjecting her to a monetary penalty. The Commission determined Justice of the Peace Myers acted willfully and knowingly in failing to comply with the financial disclosure rule and recommended that she be ordered to pay a penalty of $13,900.00 and to reimburse the Commission for costs in the amount of $215.00. However, on August 23, 2011, following this Court’s opinions in In re Hoffman, 11-0417 (La.7/1/11), 66 So.3d 455, In re Flaherty, 11-0418 (La.7/1/11), 66 So.3d 461, and In re Thomas, 11-0572 (La.7/1/11), 66 So.3d 466, the Commission filed an amended recommendation, recommending penalties be limited to $200.00, with no request for reimbursement of costs. For the reasons set forth below, we find that Justice of the Peace Myers failed to comply with the financial disclosure rule, thereby subjecting her to a civil monetary penalty. We further find the record evidence supports the Commission’s finding that Justice of the Peace Myers acted willfully and knowingly in failing to file the financial disclosure statement. After considering the facts, ^circumstances, and applicable law, Justice of the Peace Myers is ordered to pay a civil penalty in the amount of $500.00.

FACTS AND PROCEDURAL HISTORY

This Court recently promulgated Supreme Court Rule XXXIX, which requires for the first time the filing of annual personal financial disclosure statements by-judges and justices of the peace. See In re Sanborn, 10-2051 (La.11/30/10), 50 So.3d 1279. This rule became effective as to justices of the peace on January 1, 2010. Pursuant to Section 3 of the rule, all elected justices of the peace must file a financial statement by May fifteenth of each year, using a form prescribed by the Judicial Administrator’s Office (“JAO”) for that purpose. Rule XXXIX, § 3(A) and (B). If a justice of the peace fails to timely file a financial disclosure statement as required by the rule, or omits any information required to be included in the statement, or the JAO has reason to believe the information included in the statement is inaccurate, the JAO must notify the justice of the peace of such failure, omission, or inaccuracy by certified mail. Rule XXXIX, § 4(A). The notice of delinquency shall inform the justice of the peace that the financial statement must be filed, or that the information must be disclosed or accurately disclosed, or that a written answer contesting the allegation of such a failure, omission, or inaccuracy must be filed within fourteen days. Rule XXXIX, § 4(A)(2). If the justice of the peace files the statement, provides the omitted information, or corrects the inaccurate information within the deadline, no penalties shall be assessed. Rule XXXIX, § 4(B).

However, if the justice of the peace fails to file the statement, fails to provide the omitted information, fails to correct the inaccurate information, or fails to file a written answer prior to the fourteen-day deadline, the matter shall be referred to the Commission. Rule XXXIX, § 4(C)(1). In turn, if the Commission determines that lathe justice of the peace may have failed to file the statement or failed to disclose or accurately disclose the required information, the matter shall be the subject of a hearing before a hearing officer. Rule XXXIX, § 4(F).

A hearing before a hearing officer is limited to three issues: whether the justice of the peace failed to file a financial statement; whether the justice of the peace failed to disclose or accurately disclose the required information; and whether the failure was willful and knowing. Rule XXXIX, § 4(F)(3). The hearing officer submits a report to the Commission containing proposed findings of fact and conclusions of law, which report is then considered by the Commission. Rule XXXIX, § 4(F)(4). If the Commission determines the justice of the peace has failed to file a statement, or failed to disclose or accurately disclose the required information, the Commission shall file the record and recommendation with this Court. Rule XXXIX, § 4(F)(6). In that event, the Commission shall recommend the imposition of civil penalties against the justice of the peace, and shall also make a recommendation as to whether the violation was willful and knowing. Id.

Once the recommendation is filed in this Court, Rule XXXIX, §.4(F)(7) provides that the case shall be docketed “summarily” for oral argument, and the Court’s judgment “shall be rendered promptly following argument.” If the Court determines no violation has occurred, no penalty shall be assessed. Rule XXXIX, § 4(F)(7). If the Court determines that a violation has occurred, civil penalties of up to fifty dollars per day shall be assessed against the justice of the peace. Rule XXXIX, § 4(F)(7)(b).

Three similar cases involving justices of the peace were decided on July 11, 2011. See Hoffman; Flaherty, Thomas, supra. Today, three more cases involving violations of Rule XXXIX by justices of the peace have also been decided. See In re LaGrange, 11-0714 (La.10/25/11), 74 So.3d 661; In re Cook, 11-0715 (La.10/25/11), 74 So.3d 667; In re Threet, 11-0875 (La.10/25/11), 74 So.3d 679.

Justice of the Peace Myers (hereinafter “respondent”), who is not an attorney, was elected to the office of justice of the peace for District 4 of Pointe Coupee Parish during the 2009 calendar year. In 2009, the JAO made a presentation at the Attorney General’s training conference for justices of the peace regarding the May 15, 2010 deadline for filing the personal financial disclosure statement for 2009 (hereinafter the “2009 Statement”). Respondent was in attendance at this session, however, she did not file her 2009 Statement by May 15, 2010. A JAO staff attorney attempted to contact respondent by telephone to inquire about her non-compliance, but was unable to reach her. Accordingly, on June 16, 2010, the JAO sent respondent a notice of delinquency advising her that the 2009 Statement “must be filed no later than fourteen (14) business days after receipt of this notice of delinquency, or by July 8, 2010.” The notice also stated that failure to file the 2009 Statement by the deadline “shall result in the imposition of penalties as provided in Section 4 of Rule XXXIX.” Respondent personally signed for the certified mail containing the delinquency notice, but still she did not submit the 2009 Statement. On July 23, 1010, the JAO referred the matter to the Commission. Respondent eventually filed the 2009 Statement on April 13, 2011, after the Commission had filed a Formal Charge against her and two months after the matter was heard by a hearing officer.

The hearing proceeded on February 15, 2011 before the hearing officer and respondent appeared and testified. In her comments to the hearing officer, respondent testified that she is employed as a school bus driver and that she succeeded her father as Justice of the Peace for District 4 of Pointe Coupee Parish after his death eleven years ago. She stated that she did not realize the form needed to be filed “and exactly |swhat it was.” She testified that she could not recall hearing any discussion at the 2009 justice of the peace training conference about the financial disclosure statement and indicated that the first time she heard about the filing requirement was “in the latter part of the year of 2010,” when another justice of the peace mentioned it to her. However, she admitted she did not take any action at that time. Likewise, she acknowledged receipt of the delinquency notice, for which she personally signed the certified mail receipt on June 24, 2010, but testified that she never opened the envelope, even after she observed that the letter came from the “Judicial Commission.” She attributed her actions to the “turmoil” of her pending divorce. She testified about her actions after she was personally served with the Formal Charge on November 4, 2010:

A. I think I may have spoke [sic] to someone afterwards, but I don’t remember.
Q. Do you remember who you spoke to?
A. I don’t remember. I don’t know who I spoke with. I think after I had gotten that, I had asked John Kline who’s the Justice of the Peace in Livonia, and he had given me a number. And I don’t remember who I spoke with. And I think — yeah, I was told to look on the Internet to get the form and — which my computer was not working at the time or the printer — and to go ahead and get the form filed. And she couldn’t find it or whatever, and I don’t know what I did after that.

She offered no apology or statement of contrition for her failure to file the 2009 Statement.

Following the hearing, the hearing officer filed findings of fact and conclusions of law with the Commission, finding that respondent failed to timely file the 2009 Statement and that she acted willfully and knowingly. The Commissioners invited respondent to appear before them on April 15, 2011 to make a statement in response to the hearing officer’s report, but she did not attend.

|fiThe Commission filed its recommendation on April 29, 2011, adopting all of the hearing officer’s proposed finding of fact and law, including the finding that respondent acted willfully and knowingly in failing to timely file the 2009 Statement. The Commission reasoned that respondent’s failure to respond to efforts to contact her regarding the delinquency of her 2009 Statement and her decision not to open a certified letter from the Commission are tantamount to a purposeful choice not to file the 2009 Statement. There was no evidence that respondent used due diligence to find out what she should do to comply with Rule XXXIX once she was informed that she needed to file the 2009 Statement. Further, even after the conclusion of her February 15, 2011 hearing before the hearing officer, respondent still did not file a financial disclosure statement for 57 more days. She offered no reason at all for her extremely late filing. The Commission found this conduct evidenced her bad faith and willful and knowing conduct.

Based upon these findings, the Commission determined that the burden of proof was satisfied. As a total of 278 days passed from July 9, 2010 (the deadline set forth in the delinquency notice) to April 18, 2011 (the date respondent submitted her 2009 Statement by facsimile), the Commission recommended that respondent be ordered to pay $18,900.00 in penalties citing the former version of Rule XXXIX, § 4(F)(7), which has since been amended to provide for a penalty of up to $50 per day. and costs in the amount of $215.00.

|7On August 23, 2011, following this Court’s opinions in Hoffman, Flaherty, and Thomas, supra, the Commission filed an amended recommendation in this matter, significantly changing some of its factual findings and recommendation. The Commission changed its finding that respondent acted willfully and knowingly, and instead found she acted negligently. The Commission also recommended that the civil penalties be limited to $200.00, and the Commission withdrew its request for reimbursement of costs.

DISCUSSION

Having resolved several cases involving violations of Rule XXXIX, we have yet to determine the appropriate burden of proof in these type cases. See Sanborn, supra; Hoffman, supra. Rule XXXIX is silent on the issue. However, in cases involving judicial discipline, we have consistently determined that the clear and convincing standard is the appropriate standard. In re Morvant, 09-747 (La.6/26/09), 15 So.3d 74, 79; In re Hughes, 03-3408 (La.4/22/04), 874 So.2d 746, 760; In re Bowers, 98-1735 (La.12/1/98), 721 So.2d 875; In re Johnson, 96-1866 (La.11/25/96), 683 So.2d 1196; In re Huckaby, 95-0041 (La.5/22/95), 656 So.2d 292. We have also applied the clear and convincing burden of proof to judicial discipline cases involving justices of the peace. In re Freeman, 08-1820 (La.12/2/08), 995 So.2d 1197; In re Franklin, 07-1425 (La.11/27/07), 969 So.2d 591. In Sanborn, the first judicial disciplinary proceeding brought under Rule XXXIX, we declined to resolve the burden of proof issue as the facts were undisputed and presented a violation of Rule XXXIX under either standard. Similarly, in Hoffman, Flaherty, and Thomas, we declined to establish the burden of proof for violations of Rule XXXIX involving justices of the peace. However, upon review, we have determined that, just as in judicial disciplinary proceedings brought under other rules, |sthe Judiciary Commission must prove violations of Rule XXXIX by clear and convincing evidence. After reviewing the record in this case, we find the evidence establishes by clear and convincing evidence that respondent did not timely her financial disclosure statement. It is undisputed that the 2009 Statement was due July 9, 2010, but was not filed until April 13, 2011.

Having found respondent in violation of Rule XXXIX, we next decide whether her violation was “willful and knowing” under Rule XXXIX, § 4(F)(8). In the first cases before us involving violations of Rule XXXIX, we classified actions as “willful and knowing” as those which involve bad faith or a purposeful choice not to file the disclosure statement in order to obtain some personal or professional gain. Hoffman, supra at 459-60; Sanborn, supra at 1282-83. In addition, we refused to find a “willful and knowing” violation where the failure to timely file was “a case of mere neglect, not willful and knowing disobedience of the rule.” Sanborn, supra at 1282-83. Further, “we recognized some leniency is appropriate where the judge’s ‘violation of the judicial rules was undeniably unknowing and not the product of any dishonest motive.’ ” Id. (citing Morvant, supra at 80). Under those standards, we have yet to find a willful and knowing violation of Rule XXXIX. However, as we warned in Hoffman, Flaherty, and Thomas, “such leniency or benefit of the doubt will not be extended now that the financial disclosure rule has been in effect for more than one year.”

In this case, we find respondent’s failure to timely file her 2009 Statement to be willful and knowing. Respondent acknowledges receiving the delinquency notice on June 24, 2010, but then making the conscious choice not to open the envelope which she knew came from the Judiciary Commission. She did not file her 2009 Statement after being served with the Formal Charge, and, incredibly, did not file 19it until nearly two months after the hearing. As found by the hearing officer, she offered no reason for her extremely late filing and did not appear to realize or care about its importance. This is more than mere negligence, but was willful and knowing disobedience of the disclosure rule. Respondent’s conduct evidences a “purposeful choice” not to file the disclosure statement. While there was no evidence presented that she failed to timely file the statement in order to obtain some monetary gain, that is not required under our holding in Sanborn. “Personal or professional gain” is to be interpreted broadly, and the “gain” can be anything from a desire not to disclosure one’s personal assets to the public, to a desire not to take the time, trouble and effort to complete the form with knowledge that it is required to be filed by a certain date. The financial disclosure form required of justices of the peace by Rule XXXIX is quite short and simple, and would have taken a minimal amount of time to complete. Accordingly, we agree with the hearing office and the Commission that respondent acted in bad faith and therefore, her conduct was willful and knowing violation of Rule XXXIX.

We next decide the appropriate penalty for respondent’s failure to timely file her financial disclosure statement under Rule XXXIX. In response to our recent penalty assessments in Hoffman, Flaherty, and Thomas, the Judiciary Commission filed an amended recommendation, seeking a civil penalty of $200.00 and withdrawing its request for costs. We must point out that each violation of Rule XXXIX is decided on a case by case basis and our $200.00 penalty assessments in those prior cases should not be construed as absolutes for violations of Rule XXXIX. However, the Judiciary Commission was correct in withdrawing its request for costs as we have declined to award costs for violations of Rule XXXIX because that rule does not provide for assessment of costs and “the only costs taxable against a litigant 1 inare those provided by the positive law.” Sanborn, supra at 1283. After reviewing the facts and circumstances in this case, we find that a civil penalty of $500.00 is appropriate:

CONCLUSION

We find the record establishes by clear and convincing evidence that Justice of the Peace Myers failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting her to a civil monetary penalty. We further find that her failure to comply with the financial disclosure rule was willful and knowing. Accordingly, it is ordered that Justice of the Peace Myers pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $500.00, no later than thirty days from the finality of this judgment.

      . Although Rule XXXIX does not specify a burden of proof, the Commission found the Office of Special Counsel had proven the charge by clear and convincing evidence.

      . Originally, Rule XXXIX provided a mandatory civil penalty of $50 per day of delay for justices of the peace and $100 per day of delay for judges, with no discretion to assess a lesser amount. However, effective May 18, 2011, the Court amended Rule XXXIX, § 4(F)(7) to provide that the amount of the penalty may be decided in the Court's discretion, up to $50 per day for justices of the peace and up to $100 per day for judges.


source: Caselaw Access Project

author: VICTORY, J.

license: Public Domain

text:
    In re Justice of the Peace Thomas “Tom” THREET, Ward 4, Parish of Calcasieu, State of Louisiana.
    No. 2011-O-0875.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      Office of Special Counsel, Henry Nathan Bellamy, Special Counsel, Barbara Lynn Edin, Assistant Special Counsel, For Applicant.
    Thomas “Tom” Threet, For Respondent.
    Nancy E. Rix, Commission Counsel.
   VICTORY, J.

11 This matter arises from a recommendation of the Judiciary Commission of Louisiana (the “Commission”) regarding Justice of the Peace Thomas Threet’s failure to comply with the financial disclosure requirements of Louisiana Supreme Court Rule XXXIX. The Commission found that Justice of the Peace Threet failed to file his 2009 personal financial disclosure statement timely, thereby subjecting him to a monetary penalty. The Commission determined Justice of the Peace Threet acted willfully and knowingly in failing to comply with the financial disclosure rule and recommended that he be ordered to pay a penalty of $9,300.00 and to reimburse the Commission for costs in the amount of $280.00. However, on August 23, 2011, following this Court’s opinions in In re Hoffman, 11-0417 (La.7/1/11), 66 So.3d 455, In re Flaherty, 11-0418 (La.7/1/11), 66 So.3d 461, and In re Thomas, 11-0572 (La.7/1/11), 66 So.3d 466, the Commission filed an amended recommendation, recommending penalties be limited to $200.00, with no request for reimbursement of costs. For the reasons set forth below, we find that Justice of the Peace Threet failed to comply with the financial disclosure rule, thereby subjecting him to a civil monetary penalty. We further find the record evidence supports the Commission’s finding that Justice of the Peace Threet acted willfully and knowingly in failing to file the financial disclosure statement. After considering the facts, |2circumstances, and applicable law, Justice of the Peace Threet is ordered to pay a civil penalty in the amount of $300.00. '

FACTS AND PROCEDURAL HISTORY

This Court recently promulgated Supreme Court Rule XXXIX, which requires for the first time the filing of annual personal financial disclosure statements by judges and justices of the peace. See In re Sanborn, 10-2051 (La.11/30/10), 50 So.3d 1279. This rule became effective as to justices of the peace on January 1, 2010. Pursuant to Section 3 of the rule, all elected justices of the peace must file a financial statement by May fifteenth of each year, using a form prescribed by the Judicial Administrator’s Office (“JAO”) for that purpose. Rule XXXIX, § 3(A) and (B). If a justice of the peace fails to timely file a financial disclosure statement as required by the rule, or omits any information required to be included in the statement, or the JAO has reason to believe the information included in the statement is inaccurate, the JAO must notify the justice of the peace of such failure, omission, or inaccuracy by certified mail. Rule XXXIX, § 4(A). The notice of delinquency shall inform the justice of the peace that the financial statement must be filed, or that the information must be disclosed or accurately disclosed, or that a written answer contesting the allegation of such a failure, omission, or inaccuracy must be filed within fourteen days. Rule XXXIX, § 4(A)(2). If the justice of the peace files the statement, provides the omitted information, or corrects the inaccurate information within the deadline, no penalties shall be assessed. Rule XXXIX, § 4(B).

However, if the justice of the peace fails to file the statement, fails to provide the omitted information, fails to correct the inaccurate information, or fails to file a written answer prior to the fourteen-day deadline, the matter shall be referred to the Commission. Rule XXXIX, § 4(C)(1). In turn, if the Commission determines that |sthe justice of the peace may have failed to file the statement or failed to disclose or accurately disclose the required information, the matter shall be the subject of a hearing before a hearing officer. Rule XXXIX, § 4(F).

A hearing before a hearing officer is limited to three issues: whether the justice of the peace failed to file a financial statement; whether the justice of the peace failed to disclose or accurately disclose the required information; and whether the failure was willful and knowing. Rule XXXIX, § 4(F)(3). The hearing officer submits a report to the Commission containing proposed findings of fact and conclusions of law, which report is then considered by the Commission. Rule XXXIX, § 4(F)(4). If the Commission determines the justice of the peace has failed to file a statement, or failed to disclose or accurately disclose the required information, the Commission shall file the record and recommendation with this Court. Rule XXXIX, § 4(F)(6). In that event, the Commission shall recommend the imposition of civil penalties against the justice of the peace, and shall also make a recommendation as to whether the violation was willful and knowing. Id.

Once the recommendation is filed in this Court, Rule XXXIX, § 4(F)(7) provides that the case shall be docketed “summarily” for oral argument, and the Court’s judgment “shall be rendered promptly following argument.” If the Court determines no violation has occurred, no penalty shall be assessed. Rule XXXIX, § 4(F)(7). If the Court determines that a violation has occurred, civil penalties of up to fifty dollars per day shall be assessed against the justice of the peace. Rule XXXIX, § 4(F)(7)(b).

Three similar cases involving a justice of the peace were decided on July 11, 2011. See Hoffman, Flaherty, Thomas, supra. Today, three more cases involving violations of Rule XXXIX by justices of the peace have been decided. See In re LaGrange, 11-0714 (La.10/25/11), 74 So.3d 661; In re Myers, 11-0874 (La.10/25/11), 74 So.3d 672; In re Cook, 11-0715 (La.10/25/11), 74 So.3d 667.

Justice of the Peace Threet (hereinafter “respondent”), who is not an attorney, was elected to the office of justice of the peace for Ward 4 of Calcasieu Parish during the 2009 calendar year. In 2010, the JAO made a presentation at the Attorney General’s training conference for justices of the peace regarding the May 15, 2010 deadline for filing the personal financial disclosure statement for 2009 (hereinafter the “2009 Statement”). Respondent was in attendance at this session, however, he did not file his 2009 Statement by May 15, 2010. A JAO staff attorney attempted to contact respondent by telephone to inquire about his non-compliance, but was unable to reach him. Accordingly, on June 16, 2010, the JAO sent respondent a notice of delinquency advising him that the 2009 Statement “must be filed no later than fourteen (14) business days after receipt of this notice of delinquency, or by July 8, 2010.” The notice also stated that failure to file the 2009 Statement by the deadline “shall result in the imposition of penalties as provided in Section 4 of Rule XXXIX.” On June 22, 2010, Respondent’s wife signed for the certified mail containing the delinquency notice, but still he did not submit the 2009 Statement. On July 23, 1010, the JAO referred the matter to the Commission. Respondent eventually filed the 2009 Statement on January 10, 2011, after the Commission had filed a Formal Charge against him.

The hearing proceeded on February 14, 2011 before the hearing officer and respondent appeared and testified. In his comments to the hearing officer, respondent testified that he has been a justice of the peace for almost ten years while working as a policeman for the city of DeQuincy, Louisiana. He acknowledged he received, but did not respond to, the delinquency notice sent to him in 2010, as well as | .^communications from the Office of Special Counsel. He also acknowledged that he did not respond to the Formal Charge. Regarding the tardy filing of the 2009 Statement, respondent stated that he “made a horrible mistake” because he thought he had filed the correct form in November 2010. In fact, however, he had faxed to the JAO a copy of the legislative auditor’s financial statement which justices of the peace are required to file pursuant to La. R.S. 24:513. Respondent assured the hearing officer that he now understood there are two financial disclosure forms and they are required to be filed with different entities. He stated that after he heard from the JAO that he had faxed the incorrect form, he was still delayed in filing the 2009 Statement because he had “some issues with family matters” during the December 2010 holidays. While characterizing his family situation as extremely stressful, he acknowledged that it did not excuse his failure to file the 2009 Statement promptly. He concluded by expressing regret for his failure to file the 2009 Statement timely, and stated that his actions were not purposeful “in order to have some professional or personal gain,” and assured the hearing officer that he would make sure he was in compliance with the disclosure rule in the future.

Following the hearing, the hearing officer filed findings of fact and conclusions of law with the Commission, finding that respondent failed to timely file a 2009 Statement, but that he had not acted willfully and knowingly because he mistakenly believed he had filed the 2009 Statement, when in fact he had only filed the legislative auditor’s financial statement. The Commissioners invited respondent to appear before them on April 15, 2011 to make a statement in response to the hearing officer’s report, but he did not attend.

IfiThe Commission filed its recommendation on April 29, 2011, adopting most of the hearing officer’s proposed finding of fact and law, except the finding that respondent’s failure to timely file the 2009 Statement was not willful and knowing. The Commission reasoned that respondent’s failure to respond to efforts to contact him regarding the delinquency of his 2009 Statement is tantamount to a purposeful choice not to file the 2009 Statement. Similarly, he waited approximately six weeks to contact the JAO after receiving a voice mail message from them that he had faxed the wrong form to them on November 22, 2010. Under the circumstances, the Commission found no facts to mitigate respondent’s conduct:

... Justice of the Peace Threet was confused about which form he was supposed to file with the Supreme Court Judicial Administrator’s Office. To the Commission this does not constitute a mitigating factor because subsequently he received several alerts and/or notices about his failure and he chose not to respond or ask any questions. Further, the hearing officer found, and the Commission agrees, that Justice of the Peace Threet probably thought he was solely responsible for filing the legislative auditor financial information form. This could have provided some measure of mitigation except that even after he was told on November 22, 2010 that he was using the wrong form he waited until January 10, 2011 to correct his error and file the right form. The troubles of his in-laws (their alcohol and prescription drug use, as well as their physical altercation in which he became embroiled) and his involvement in their situation do not constitute a legitimate reason for him to ignore his legal duty to file the 2009 Statement ...

Based upon these findings, the Commission determined that the burden of proof was satisfied. As a total of 186 days passed from July 9, 2010 (the deadline set forth in the delinquency notice) to January 10, 2011 (the date respondent submitted her 2009 Statement by facsimile), the Commission recommended that respondent be ordered to pay $9,300.00 in penalties citing the former version of Rule XXXIX, |7§ 4(F)(7), which has since been amended to provide for a penalty of up to $50 per day, and costs in the amount of $280.00.

On August 23, 2011, following this Court’s opinions in Hoffman, Flaherty, and Thomas, supra, the Commission filed an amended recommendation in this matter, significantly changing some of its factual findings and recommendation. The Commission changed its finding that respondent acted willfully and knowingly, and instead found he acted negligently. The Commission also recommended that the civil penalties be limited to $200.00, and the Commission withdrew its request for reimbursement of costs.

DISCUSSION

Having resolved several cases involving violations of Rule XXXIX, we have yet to determine the appropriate burden of proof in these type cases. See Sanborn, supra; Hoffman, supra. Rule XXXIX is silent on the issue. However, in cases involving judicial discipline, we have consistently determined that the clear and convincing standard is the appropriate standard. In re Morvant, 09-747 (La.6/26/09), 15 So.3d 74, 79; In re Hughes, 03-3408 (La.4/22/04), 874 So.2d 746, 760; In re Bowers, 98-1735 (La.12/1/98), 721 So.2d 875; In re Johnson, 96-1866 (La.11/25/96), 683 So.2d 1196; In re Huckaby, 95-0041 (La.5/22/95), 656 So.2d 292. We have also applied the clear and convincing burden of proof to judicial discipline cases involving justices of the peace. In re Freeman, 08-1820 (La.12/2/08), 995 So.2d 1197; In re Franklin, 07-1425 (La.11/27/07), 969 So.2d 591. In Sanborn, the first judicial disciplinary proceeding brought under Rule XXXIX, we declined to resolve the burden of proof issue as the facts were undisputed and ^presented a violation of Rule XXXIX under either standard. Similarly, in Hoffman, Flaherty, and Thomas, we declined to establish the burden of proof for violations of Rule XXXIX involving justices of the peace. However, upon review, we have determined that, just as in judicial disciplinary proceedings brought under other rules, the Judiciary Commission must prove violations of Rule XXXIX by clear and convincing evidence. After reviewing the record in this case, we find the evidence establishes that respondent did not timely file his financial disclosure statement by clear and convincing evidence. It is undisputed that the 2009 statement was due July 9, 2010, but was not filed until January 10, 2011.

Having found respondent in violation of Rule XXXIX, we next decide whether his violation was “willful and knowing” under Rule XXXIX, § 4(F)(8). In the first cases before us involving violations of Rule XXXIX, we classified actions as “willful and knowing” as those which involve bad faith or a purposeful choice not to file the disclosure statement in order to obtain some personal or professional gain. Hoffman, supra at 460; Sanborn, supra at 1282-83. In addition, we refused to find a “willful and knowing” violation where the failure to timely file was “a case of mere neglect, not willful and knowing disobedience of the rule.” Sanborn, supra at 1282-83. Further, “we recognized some leniency is appropriate where the judge’s ‘violation of the judicial rules was undeniably unknowing and not the product of any dishonest motive.’” Id. (citing Morvant, supra at 80). Under those standards, we have yet to find a willful and knowing violation of Rule XXXIX. However, as we warned in Hoffman, Flaherty, and Thomas, “such leniency or benefit of the doubt will not be extended now that the financial disclosure rule has been in effect for more than one year.”

|flIn this case, we find respondent’s failure to timely file his 2009 Statement to be willful and knowing. While it is true that respondent mistakenly thought he had complied with the rule by filing the legislative auditor’s statement, he was notified on November 22, 2010 that he had filed the wrong form. Still, he waited until January 10, 2011 before filing his 2009 Statement. This is more than mere negligence, but was willful and knowing disobedience of the disclosure rule. Respondent’s conduct evidences a “purposeful choice” not to file the disclosure statement. While there was no evidence presented that he failed to timely file the statement in order to obtain some monetary gain, that is not required under our holding in Sanborn. “Personal or professional gain” is to be interpreted broadly, and the “gain” can be anything from a desire not to disclosure one’s personal assets to the public, to a desire not to take the time, trouble and effort to complete the form with knowledge that it is required to be filed by a certain date. While respondent claims that some family issues over the Christmas holidays caused him to delay filing the proper form, he acknowledged that this did not excuse his failure to timely file. The financial disclosure form required of justices of the peace by Rule XXXIX is quite short and simple, and would have taken a minimal amount of time to complete. While respondent at first was merely negligent for his untimely filing because he was mistaken as to the correct form to file, once it was made clear to him what the rule required, he knowingly disobeyed the rule by waiting six weeks to file the proper disclosure statement. Accordingly, we find that respondent committed a willful and knowing violation of Rule XXXIX.

We next decide the appropriate penalty for respondent’s failure to timely file his financial disclosure statement under Rule XXXIX. In response to our recent penalty assessments in Hoffman, Flaherty, and Thomas, the Judiciary Commission | milled an amended recommendation, seeking a civil penalty of $200.00 and withdrawing its request for costs. We must point out that each violation of Rule XXXIX is decided on a case by case basis and our $200.00 penalty assessments in those prior cases should not be construed as absolutes for violations of Rule XXXIX. However, the Judiciary Commission was correct in withdrawing its request for costs as we have declined to award costs for violations of Rule XXXIX because that rule does not provide for assessment of costs and “the only costs taxable against a litigant are those provided by the positive law.” Sanborn, supra at 1283. After reviewing the facts and circumstances in this case, we find that a civil penalty of $300.00 is appropriate.

CONCLUSION

We find the record establishes by clear and convincing evidence that Justice of the Peace Threet failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting him to a civil monetary penalty. We further find that his failure to comply with the financial disclosure rule was willful and knowing. Accordingly, it is ordered that Justice of the Peace Threet pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $300.00, no later than thirty days from the finality of this judgment.

      . Asked for an explanation, he testified that some family members were involved in a domestic dispute.

      . Although Rule XXXIX does not specify a burden of proof, the Commission found the Office of Special Counsel had proven the charge by clear and convincing evidence.

      . Originally, Rule XXXIX provided a mandatory civil penalty of $50 per day of delay for justices of the peace and $100 per day of delay forjudges, with no discretion to assess a lesser amount. However, effective May 18, 2011, the Court amended Rule XXXIX, § 4(F)(7) to provide that the amount of the penalty may be decided in the Court's discretion, up to $50 per day for justices of the peace and up to $100 per day for judges.


author: JOHNSON, J.,

text:
    STATE of Louisiana v. Jeremy COHEA.
    No. 2011-KK-2175.
    Supreme Court of Louisiana.
    Oct. 26, 2011.
    Dissenting Opinion of Justice Johnson, Oct. 27, 2011.
   In re Cohea, Jeremy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 504-032; to the Court of Appeal, Fourth Circuit, No. 2011-K-0980.

[ i Stay denied; writ denied.

JOHNSON, J., would grant and assigns reasons.

JOHNSON, J.,

would grant Defendant’s writ application and assigns reasons.

| Recording to the arresting officers’ testimony at the hearing on Defendant’s motion to suppress, the Defendant was stopped because the officers observed him “pulling up his pants” and walking away toward a fence in a “high crime” area.

The threshold issue to be determined in the instant case is whether the officer who conducted the investigatory stop had reasonable suspicion of criminal activity. La. C.Cr.P. art. 215.1(A) provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense, and may demand of him his name, address, and an explanation of his actions.” Here, the Defendant did not present any behavior suspicious of criminal activity to warrant an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the 115 page Report on the Investigation of the New Orleans Police Department, which was conducted by the United States Department of Justice, Civil Rights Division, the report concluded that “the New Orleans Police Department 12engages in a pattern of stops, searches, and arrests that violate the Fourth Amendment. Detentions without reasonable suspicions are routine, and lead to unwarranted searches and arrests without probable cause.” Them review of 145 randomly-sampled arrest and investigative reports confirmed a pattern of unlawful conduct, not different from the arrest herein. In my view, the trial court’s ruling suppressing the evidence and statements in this case was correct, and clearly not an abuse of discretion, because the Defendant was subjected to an illegal investigatory stop by New Orleans Police Officers.

      . In Terry v. Ohio, the United States Supreme Court first recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880.

      . Investigation of the New Orleans Police Department, U.S. Department of Justice, Civil Rights Division, (March 16, 2011). A copy can be found on the U.S. Department of Justice website: www.justice.gov/crt/about/spl/ nopd_report.pdf


author: PER CURIAM.

text:
    STATE of Louisiana v. Archie ADAMS.
    No. 2011-KK-2381.
    Supreme Court of Louisiana.
    Nov. 2, 2011.
   PER CURIAM.

| ,The stay of the ruling of the court of appeal dated October 24, 2011, is lifted and the same ruling is hereby reversed.

The court of appeal erred by remanding this matter to the trial court for the state to provide an arrest warrant in a warrant-less arrest case. The defendant’s application to the court of appeal sought release from custody, not based upon the absence of a warrant, but based upon, defendant claims, the magistrates failure to timely determine whether probable cause to arrest him existed on charges of intimidating a witness. Specifically, in his application to the court of appeal, defendant invoked LSA-C.Cr.P. art. 230.2 (entitled “Probable cause determinations; persons arrested without a warrant and continued in custody”).

However, the record reflects that within the 48-hour period required by LSA-C.Cr.P. art. 230.2, the magistrate considered whether probable cause existed to arrest defendant and considered other preliminary matters such as bail. As it concerns probable cause specifically, the record reflects that the state submitted an affidavit from the arresting officer, the magistrate read the affidavit into the record, and then the magistrate ruled: “All right, sir, because of the nature of the charges against you, |2because of the fact that you’re intimidating a witness, your bond is set at $20,000 on each count.” Although the magistrate did not use the words “probable cause” in his explanation to defendant, the conclusory statement “because of the fact that you’re intimidating a witness” indicates that the magistrate found that a showing of probable cause had been made. See Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1279 n. 5 (La.1991) (“A trial judge need not use ‘magic words’ in order for his judgment to be accorded the appropriate deference.”).

Although we find no equivocation or question in the magistrate’s quoted explanation to defendant, if there was any question about whether the magistrate found that there was probable cause to believe defendant had intimidated a witness, such question was resolved by the magistrate’s grant of a protective order for the witness. As the magistrate ruled in the very next sentence: “Definitely, a protective order. There’s no question about that.”

Lastly, the handling of several preliminary issues — including probable cause— within one hearing is a practice we have expressly condoned in State v. Wallace, 09-1621, p. 8 (La.11/6/09), 25 So.3d 720, 726 (“[Cjourts may choose to combine probable cause determinations with other pretrial proceedings, as is done in Orleans Parish.”).

      . Kimball, C.J., not participating in the decision.


author:
      PER CURIAM.
     VICTORY, J.,

text:
    In re Paul C. MINICLIER.
    No. 2011-B-1859.
    Supreme Court of Louisiana.
    Nov. 4, 2011.
   PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Paul C. Miniclier, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

By way of background, the Cambridge Toxicology Group, Inc. (“CTG”) is a company specializing in providing medical testing and expert testimony for use in litigation. Several attorneys, all of whom represented individuals allegedly harmed in the Bogalusa Gaylord chemical plant explosion, hired CTG to perform a controlled study, evaluate individual plaintiffs, and provide expert testimony. When CTG allegedly failed to perform these services, the plaintiffs’ attorneys collectively declined to pay CTG’s bill, which was more than $1,000,000.

Respondent represented CTG in a lawsuit filed against the plaintiffs’ attorneys in the United States District Court for the Eastern District of Louisiana, under docket number 02-1469. On September 30, 2002, the district judge set a deadline of October 30, 2002 for the parties to file amendments to pleadings, third-party actions, cross-claims, and counterclaims.

|2On August 14, 2003, respondent filed a motion for leave to file a third supplemental and amended complaint on CTG’s behalf, seeking to add additional parties and causes of action (namely fraud and civil RICO claims based on an alleged conspiracy among the defendants to defraud CTG). On September 2, 2003, the magistrate judge denied the motion because she felt that the information regarding the fraud and civil RICO claims was available prior to the October 30, 2002 deadline and that the amendment would force a continuance of the trial date, then set for October 14, 2003, Respondent appealed the magistrate judge’s ruling, and the district judge denied the appeal.

After the district judge’s ruling, the trial was continued without date due to other factors. On November 14, 2003, respondent filed another motion for leave to amend CTG’s complaint. The magistrate judge denied the motion because she still felt the information regarding the fraud and civil RICO claims was available prior to the October 30, 2002 deadline. On December 19, 2003, respondent appealed the magistrate judge’s ruling, and on March 5, 2004, he filed a motion to enlarge the pretrial deadlines established on September 30, 2002. On April 1, 2004, the district judge denied both the appeal and the motion to enlarge the pre-trial deadlines. Respondent filed in the United States Court of Appeals for the Fifth Circuit a petition for leave to appeal the district court’s April 1, 2004 ruling. On May 4, 2004, the court of appeal denied the petition for leave to appeal.

On July 21, 2004, respondent filed in the United States District Court for the Eastern District of Louisiana another lawsuit on CTG’s behalf. This lawsuit, filed under docket number 04-2044, named the same parties and asserted the same causes of action that respondent had included in the two previous motions for leave to amend CTG’s complaint in docket number 02-1469.

The two cases were consolidated on September 8, 2004. Thereafter, the defendants filed a motion to dismiss the second case. Because the duplicative |scauses of action presented in the second case were not timely presented in the first case, the district judge dismissed these causes of action on October 26, 2004. In his reasons for the dismissal, the district judge noted that “this appears to be just another end run around the findings of the 02-1469 litigation.” The district judge also stressed, “for all who may have missed the point, that not one more frivolous filing or harassing tactic will be permitted or allowed to go on without the imposition of the strictest of sanctions against the offending party or counsel.”

On November 19, 2004, the defendants filed a motion requesting that the answers, affirmative defenses, and counterclaims filed by them in the first case be deemed adopted in the second case. The district judge granted the motion on December 3, 2004. On December 9, 2004, respondent filed a reply to the defendants’ counterclaim, a counterclaim, and a third party demand. In response, the defendants filed a motion to strike because the pleadings asserted claims and defenses that had repeatedly been rejected by the court in the first case. On January 10, 2005, the district judge granted the motion to strike with respect to the counterclaim, the third party demand, and several of the defenses asserted in the reply to the defendants’ counterclaim, stating,

While mindful that a motion to strike is an extraordinary remedy, the Court finds that it is warranted in this extraordinary case. Several of the defenses asserted in the reply and all of the counterclaim and third party demand constitute more of the patently duplicative litigation that has run rampant throughout this litigation. CTG has a right to reply to the defendants’ counterclaim and to bring its own counterclaim. It does not have a right to use its reply and counterclaim to circumvent or blatantly ignore the Court’s prior rulings. Counsel’s conduct is either contemptuous, or his learning capacity is grievously challenged.

The trial of the consolidated matters was held in January 2005 and resulted in a judgment largely favorable to CTG. On February 18, 2005, the defendants filed a motion for costs, expenses, and attorney’s fees, pursuant to 28 U.S.C. §_[í¡1927, in an attempt to recoup the unnecessary fees and costs they incurred because of the repetitive and redundant pleadings filed on CTG’s behalf. With the motion, the defendants included a printout of an email sent by respondent, which they alleged revealed that his motivation for filing the repetitive and redundant pleadings was to generate attorney’s fees for the attorneys on both sides. After an evidentiary hearing, the district judge determined respondent “unreasonably and vexatiously multiplied this litigation within the injunction of § 1927.” Accordingly, he granted the motion and, on January 12, 2006, awarded the defendants a total of $27,609.80 in attorney’s fees and costs. On August 1, 2007, the United States Court of Appeals for the Fifth Circuit affirmed the district judge’s judgment, stating, “The court identified numerous offending pleadings filed by Miniclier and awarded sanctions based on the time required by the defendants to respond to those pleadings. The court did not abuse its discretion in sanctioning Min-iclier.” Thereafter, respondent paid the defendants $29,682.57 to satisfy the judgment, which amount included interest through September 25, 2007.

DISCIPLINARY PROCEEDINGS

In December 2008, the ODC filed formal charges against respondent, alleging that his conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 3.1 (meritorious claims and contentions), | s3.4 (knowing disobedience of an obligation under the rules of a tribunal), 3.5(d) (engaging in conduct intended to disrupt a tribunal), 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent, through counsel, answered the formal charges, denying any misconduct. The matter then proceeded to a formal hearing on the merits, conducted by the hearing committee in December 2010.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the facts set forth in the underlying facts section above. The committee then addressed the alleged rule violations as follows:

| fiRule 3.1 — The ODC failed to prove a violation of this rule by clear and convincing evidence. First, it was not unreasonable for respondent to refrain from initially making the fraud and civil RICO claims and then seeking to assert them in light of facts that were uncovered (or perhaps confirmed) by discovery because the federal rules require a heightened standard for pleading civil RICO and other fraud-based claims. Furthermore, the federal rules generally allow for liberal amendment to the pleadings. While the judges were well within their authority and discretion to determine that respondent’s delay in seeking to amend the complaint was an undue delay, no evidence exists in this record to determine when he actually knew or should have known that a sufficient cause of action could have been stated. Second, while an undue delay might justify denial of leave to amend two weeks before trial, it might not justify denial of leave to amend after the trial date has been continued. Each motion is decided based on a totality of the circumstances, which often change. Finally, a court is never required to deny leave where there has been an undue delay. The court still retains the discretion to grant leave to amend, in light of the other facts and circumstances.

Rule 3.4 — Respondent violated this rule by filing a counterclaim on December 9, 2004 because, on October 26, 2004, the district judge obligated respondent to refrain from filing another motion or pleading attempting to assert the civil RICO and fraud claims that had previously been rejected.

Rule 4.4(a) — Even assuming respondent was motivated in part by his, or his client’s, desire to embarrass, harass, delay, or burden the defendants in the underlying litigation, it cannot be said that there was no other substantial purpose for the repeated attempts to assert the civil RICO claims. As recognized by the magistrate judge, the purpose of the amendment would be “to provide new grounds for a claim for attorneys’ fees and costs.” In fact, respondent testified that his client wanted to make sure attorney’s fees were recovered. Respondent further | vindicated that he was motivated by a concern regarding the potential application of collateral estoppel, as well as a concern about being sued for malpractice, given the client’s strong beliefs and desire to pursue the fraud claims.

Rule 8.4(d) — Respondent violated this rule by filing the counterclaim in December 2004 despite the court’s strong admonition in October 2004.

Rule 3.5(d) — While respondent may have, in fact, disrupted the tribunal, there is not clear and convincing evidence that this was his intent, as required by this rule.

The committee went on to state:

In this case, Respondent appears to have zealously, and indeed overzealously, prosecuted the underlying litigation on behalf of his client. While the March 2005 e-mail exchange may have been imprudent and unprofessional, it does not appear to betray an intent to put Respondent’s attorney fee interest before the interests of his own client. To the contrary, the record suggests that in seeking (repeatedly) to advance the Civil RICO and other fraud claims, Respondent was actually attempting to secure attorneys’ fees, on top of the client’s recovery, at the client’s insistence, in order to make the client whole. Respondent credibly testified, in response to questioning from the Hearing Committee, that, at the time of the e-mail exchange, he was essentially working on a contingent fee basis; that he had not been paid an hourly fee in months; and that the client, even after being made aware of the e-mail, never complained about his fee.

The committee then determined the following aggravating factors are present: prior disciplinary offenses (a 1993 admonition for engaging in conduct intended to disrupt a tribunal and engaging in conduct prejudicial to the administration of justice), refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1985). In mitigation, the committee found only the imposition of other penalties or sanctions.

Further noting that respondent was sanctioned publicly by the United States District Court and required to pay more than $27,000 in fees and costs to the | ^opposing counsel, the majority of the committee recommended respondent be suspended from the practice of law for three months, fully deferred. The committee’s public member dissented and would recommend a one year and one day suspension.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board also determined that the committee correctly applied the Rules of Professional Conduct. Specifically, the board found that respondent violated Rule 3.4 by continuing in his attempts to advance the fraud and civil RICO claims after the court repeatedly warned him that it was not going to allow those claims. Respondent also violated Rule 8.4(d) because his conduct forced the defendants to expend additional time and money defending his repeated attempts to circumvent the court’s rulings and frustrated the legal system by prolonging the underlying legal matter. Although the committee did not address the alleged violation of Rule 8.4(a), the board found that respondent violated the rule by violating Rules 3.4 and 8.4(d).

The board agreed with the committee that respondent did not violate Rules 3.1, 4.4(a), and 3.5(d). With respect to Rule 3.1, the board disagreed with the ODC’s argument that filing a pleading (even one based on non-frivolous facts) contrary to a court’s order makes the pleading frivolous. The board found respondent did not violate Rule 4.4(a) because, even though he attempted to circumvent the previous rulings of the court, he did so in an attempt to protect the interests of his client. Finally, he did not violate Rule 3.5(d) because, even though his actions disrupted the tribunal, this was not his intent.

laThe board further determined respondent knowingly violated duties owed to the legal system. His misconduct caused actual harm to the legal system and the opposing parties in the form of significant frustration, delay, and additional expense. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

In aggravation, the board found prior disciplinary offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. In mitigation, the board found the absence of a dishonest or selfish motive, imposition of other penalties or sanctions, and remoteness of prior offenses.

Turning to the issue of an appropriate sanction, the board determined that respondent’s misconduct is analogous to, although not as egregious as, the misconduct in In re: Zohdy, 04-2361 (La.1/19/05), 892 So.2d 1277. In Zohdy, an attorney engaged in a lengthy series of frivolous litigation in two separate federal class actions. For this misconduct, the court suspended the attorney from the practice of law for three years, with one year deferred.

Given the totality of the circumstances, and in light of the fact that respondent’s misconduct is not as egregious as the misconduct in Zohdy, the board recommended respondent be suspended from the practice of law for three months, fully deferred, subject to one year of unsupervised probation.

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: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In this matter, the record supports a finding that respondent knowingly disobeyed the district court’s rulings and, thus, engaged in conduct prejudicial to the administration of justice. The record also supports a finding that respondent violated the Rules of Professional Conduct as found by the disciplinary board.

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 violated duties owed to the legal system, causing actual harm. The baseline sanction for this misconduct is suspension. The record supports the aggravating and mitigating factors found by the board. Additionally, the mitigating factor of full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings is present.

With respect to the appropriate sanction in this matter, three prior cases provide guidance. However, we find the misconduct in each of the three cases was more egregious than respondent’s misconduct. Those three cases are In re: Zohdy, 04-2361 (La.1/19/05), 892 So.2d 1277, as discussed by the board, In re: Cook, 06-0426 (La.6/16/06), 932 So.2d 669, and In re: LaMartina, 10-0093 (La.7/2/10), 38 So.3d 266. In Cook, an attorney filed repetitive and unwarranted pleadings in ongoing litigation and made frivolous and harassing claims for Indiscovery against third persons not involved in the litigation. For this misconduct, we suspended the attorney from the practice of law for three years, with all but eighteen months deferred. In LaMartina, an attorney, who was on criminal probation for engaging in criminal conduct at her child’s school, violated the judge’s instructions and court-imposed procedures for her to visit the school. For this misconduct, we suspended the attorney from the practice of law for one year and one day, fully deferred, subject to two years of unsupervised probation with conditions.

In light of the less egregious nature of respondent’s misconduct as compared to the misconduct found in the prior jurisprudence, we will adopt the board’s recommendation and suspend respondent from the practice of law for three months, fully deferred, subject to one year of unsupervised probation.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Paul C. Miniclier, Louisiana Bar Roll number 17062, be and he hereby is suspended from the practice of law for three months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. 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.

VICTORY, J., dissents and would impose a harsher sanction.

VICTORY, J.,

dissents.

hi dissent and would impose a harsher sentence.

       Chief Justice Kimball not participating in the opinion.

      . 28 U.S.C. § 1927 provides:
      Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

      . On March 25, 2005, the defendants' attorney, James Garner, sent an email to respondent stating, "Paul, in light of the rulings and verdict, haven’t we had our last trial." On March 28, 2005, respondent sent a response email, in which he stated, "You Wish!!!! No, I plan to make your firm a lot [sic] more money, not to mention mine. As long as they pay you sooner than my client. See you at the 5th — I hope you have that appeal bond ready, paul.”

      .The formal charges actually alleged a violation of Rule 3.5(c). However, significant changes to the Rules of Professional Conduct took effect on March 1, 2004. At that time, Rule 3.5(c) became Rule 3.5(d). Because the ODC alleged respondent engaged in misconduct that occurred both before and after this change took effect, we have referenced the current version of the rule.

      . At the hearing, respondent testified that he waited until August 2003 to file the third supplemental and amended complaint because he did not have the information, which was obtained through the discovery process, to support the additional claims and defendants until that time. He also indicated that the claims were never ruled to be non-meritorious. He was not allowed to amend the complaint because the amendment would force a continuance of the trial date. When the judge later continued the trial without date, he tried again to file a supplemental and amended complaint because the grounds for the initial denial were no longer present. The judge again denied his request, reasoning that he knew or should have known of the new claims before the October 2002 deadline.
      Thereafter, he filed a new lawsuit to bring the claims based on case law holding that if an amended complaint is not allowed, the proper course of action is to file a new lawsuit. Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, (5th Cir.1981). He believed the new claims were not frivolous, and he had no intention to harass the opposing parties by filing the new complaint. However, he was concerned his client would accuse him of malpractice if he failed to file the new complaint to introduce the new claims. Finally, he again brought up the new claim as a reply to the defendant’s counterclaim in the new lawsuit.
      Regarding the email he sent to Mr. Garner, he stated that he was being sarcastic because Mr. Garner had already submitted substantial bills to his clients. The defendants were also fighting paying the judgment, so both sides were in appeal mode. He acknowledged that his email was inappropriate, but suggested his relationship with Mr. Garner had become acrimonious.


text:
    In re Willard J. BROWN, Sr.
    No. 2011-B-2247.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account by allowing the account to become overdrawn as the result of the assessment of bank service charges. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Willard J. Brown, Sr., Louisiana Bar Roll number 23405, be suspended from the practice of law for a period of six months, fully deferred, followed by a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that 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.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Lisa Jeanenne THOMAS.
    No. 2011-B-2012.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Lisa Jeanenne Thomas, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

07-DB-080

Counts I & II — The Unauthorized Practice of Law Matter

Between February 4, 2005 and September 26, 2007, respondent was ineligible to practice law for failing to meet the mandatory continuing legal education (“MCLE”) requirements and failing to pay bar dues and the disciplinary assessment. Nevertheless, from January 9, 2004 until early 2007, respondent represented Michael Brown in a matter involving conversion of succession assets. Additionally, from November 2006 until early 2007, respondent provided legal services and advice to Adri-ane Hunt with respect to a paternity and child support matter pending in California.

On September 20, 2007, the ODC took respondent’s sworn statement. During the sworn statement, respondent admitted she had recently become aware that she was ineligible to practice law, and she stated that she was in the process of | ¿remedying her ineligible status. She also admitted that the ODC advised her several times of the need to update her address with the Louisiana State Bar Association (“LSBA”). During the sworn statement, the ODC advised respondent again to update her address immediately, and she stated that she would do so. However, she did not update her address until October 24, 2007, more than one month later.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.1(c) (failure to pay bar dues and the disciplinary assessment; failure to timely notify LSBA of address change), 5.5 (engaging in the unauthorized practice of law), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count III — The McDonald Matter

In January 2007, while respondent was ineligible to practice law, she accepted the representation of Beverly McDonald in a divorce, custody, and child support matter. Ms. McDonald paid respondent a total of $1,735. Respondent prepared a petition for divorce, custody, and child support. However, the clerk of court’s office told her that she could not file the petition because Ms. McDonald owed money for a previous domestic matter. Ms. McDonald eventually terminated respondent’s services because respondent failed to complete the matter. As such, on August 1, 2007, respondent refunded $1,455 to Ms. McDonald, having charged her $105 as a consultation fee and $175 to draft the petition. Additionally, respondent did not update her address with the LSBA until October 24, 2007 after telling the ODC on September 20, 2007 that she would do so immediately.

lijThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b), 1.1(c), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 5.5, 8.4(a), and 8.4(c).

10-DB-007

Counts I & II — The Goff Matter

While respondent was ineligible to practice law, she represented Fred and Marie LeBoyd in personal injury matters. The LeBoyds received medical treatment from Dr. Michael Goff. On November 13, 2006, respondent issued a letter to Dr. Goff in which she guaranteed payment of his services rendered to the LeBoyds. In March 2007, respondent settled the LeBoyds’ claims. Although she withheld funds from the settlement proceeds to pay Dr. Goffs bill, she failed to do so. Instead, she utilized the funds for her own purposes and planned to pay Dr. Goff monthly from her own funds. When Dr. Goff sought payment from respondent, she told him of her plan. On November 26, 2007, she sent Dr. Goff two money orders for partial payment of the bills. However, she made no further monthly payments to Dr. Goff.

Also while respondent was ineligible to practice law, she represented Andre Moore in a personal injury matter. Mr. Moore received medical treatment from Dr. Goff. On January 19, 2007, respondent issued a letter to Dr. Goff in which she guaranteed payment of his services rendered to Mr. Moore. In June 2007, respondent settled Mr. Moore’s claim. Although she withheld funds from the settlement proceeds to pay Dr. Goffs bill, she failed to do so. Instead, she utilized the funds for her own purposes and planned to pay Dr. Goff monthly from her own funds. When Dr. Goff sought payment from respondent, she told him of her plan. However, she never made any monthly payments to Dr. Goff.

[4The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.1(b), 1.1(c), 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), 1.16(a)(1) (a lawyer shall not represent a client or, when representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law), 5.5, 8.4(a), and 8.4(c).

Count III — The James Matter

Respondent was ineligible to practice law from October 31, 2005 until September 26, 2007 for the reasons stated above. She was again declared ineligible to practice law from November 30, 2007 until January 31, 2008 for failing to file a trust account disclosure statement.

In November 2006, respondent began representing Jennifer James in a child support matter. Ms. James paid respondent a $650 flat fee for the representation. The child support matter was being handled by the State of Louisiana in Orleans Parish, and respondent filed a rule to make the matter executory in East Baton Rouge Parish where Ms. James was residing. However, respondent could not advance the East Baton Rouge Parish matter until the issues in the Orleans Parish matter were settled. Before the Orleans Parish matter concluded, Ms. James filed a disciplinary complaint against respondent.

In June 2008, respondent informed the ODC of her intent to withdraw from the representation and refund half of the fee. She filed a motion to withdraw as Ms. James’ counsel of record on August 4, 2008. However, she failed to refund the unearned fee to Ms. James.

15The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.1(b), 1.1(c), 1.5 (fee arrangements), 1.16(a)(1), 1.16(d) (obligations upon termination of the representation), 5.5, 8.4(a), and 8.4(c).

Count TV — The Weatherspoon Matter

In April 2008, Triva Weatherspoon hired respondent to represent her in a child support matter, paying respondent a total of $1,205 in attorney’s fees and court costs. In June 2008, Ms. Weatherspoon went to court and learned that respondent had not yet filed anything on her behalf. As such, on or about June 18, 2008, she met with respondent in person and terminated her services. At that time, she also requested a refund. In May 2009, respondent, through her counsel in these disciplinary proceedings, refunded $980 to Ms. Weath-erspoon.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(3)(4)(5) (failure to account for or refund an unearned fee), 1.15(a), 1.15(c) (a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred), 1.16(d), 8.4(a), and 8.4(c).

DISCIPLINARY PROCEEDINGS

In December 2007, the ODC filed formal charges against respondent in 07-DB-080. In February 2010, the ODC filed formal charges against respondent in 10-DB-007. Respondent, through counsel, answered both sets of formal charges, denying any misconduct. The matters were consolidated before proceeding to a formal hearing on the merits, conducted by the hearing committee in September 2010.

1 Hearing Committee Report

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

07-DB-080 — Respondent was not eligible to practice law at the time she represented Mr. Brown, Mr. Hunt, and Ms. McDonald. She also misrepresented her status as an attorney to the public during her period of ineligibility and failed to update her address with the LSBA. Based on this misconduct, the committee found that respondent violated Rules 1.1(b), 1.1(c), 5.5, 8.4(a), and 8.4(c) of the Rules of Professional Conduct.

10-DB-007 — Respondent failed to disburse the funds withheld from her clients’ settlements for Dr. Goffs medical bills. Instead, she converted the funds to her own use. Respondent claimed to have intended to pay Dr. Goff in monthly installments, but she was financially unable to do so, leaving $6,128.20 still due to Dr. Goff at the time of the hearing. Based on this misconduct, the committee found that respondent violated Rules 1.15(a), 1.15(d), 1.16(a)(1), 8.4(a), and 8.4(c) of the Rules of Professional Conduct. With respect to the James matter, respondent was unable to transfer the case to Baton Rouge and proceed with enforcement of the child support until the issues in the matter were resolved in New Orleans. Respondent claimed she advised Ms. James of the reason for the delay in January 2008, at which time Ms. James did not express any dissatisfaction with respondent. Respondent then received Ms. James’ disciplinary complaint, so she filed a motion to withdraw from Ms. James’ case on August 4, 2008. Although respondent intended to refund approximately $325, which represents the portion of the fee that was not earned, as of the date of the hearing, she had failed to do so. Respondent also failed to maintain a trust account to safeguard her clients’ fees. Based on this misconduct, the committee found that respondent violated Rules 1.1(a), 1.1(b), 1.1(c), 1.5, 1.16(a)(1), 1.16(d), and 8.4(a). With respect to the [ 7Weatherspoon matter, the committee found that the matter seems to be a fee dispute, which resulted in a $980 refund to Ms. Weatherspoon in May 2009. Ms. Weatherspoon failed to appear and testify at the hearing, and the committee found that the ODC failed to prove by clear and convincing evidence that respondent violated the Rules of Professional Conduct in the matter.

The committee determined that respondent violated duties owed to her clients, the public, the legal system, and the legal profession. She caused actual harm to Dr. Goff by failing to pay his bills from settlement proceeds and to Ms. James by failing to refund the unearned fee when requested to do so.

In aggravation, the committee found only multiple offenses. In mitigation, the committee found personal or emotional problems (the death of respondent’s mother in 2000 obviously caused her emotional distress and perhaps accounted for some of her negligence in failing to properly perform her duties in the practice of law), inexperience in the practice of law (admitted 2001), lack of a mentor, and “certain mitigating circumstances involving her lack of knowledge that she was ineligible to practice law while she continued to do so, and when she became aware that she was practicing law while she was ineligible she took the necessary steps to become eligible to do so.” The committee also acknowledged respondent’s cooperation with the ODC’s investigation and her demeanor at the hearing as mitigating factors.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for two years, with one year deferred, followed by one year of supervised probation, with the condition that she make restitution to Dr. Goff in the amount of $6,128.20 and to Ms. James in the amount of $325.

The ODC objected to the leniency of the sanction recommended by the hearing committee, suggesting that permanent disbarment is appropriate for | ¡¡respondent’s misconduct. In addition, the ODC objected to the mitigating factors found by the committee.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings do not appear to be manifestly erroneous, with one exception: In the Weatherspoon matter, respondent’s testimony and the documentary evidence established that she failed to promptly refund the unearned fee and unused costs and did not protect the unearned fee by placing it in her trust account. The board then addressed the alleged violations of the Rules of Professional Conduct as follows:

The Unauthorized Practice of Law Matter and the McDonald Matter — Respondent was deemed ineligible to practice law from February 4, 2005 to September 26, 2007 for failing to fulfill her professional obligations. During that time period, she engaged in the practice of law by providing legal services to Mr. Brown, Mr. Hunt, and Ms. McDonald. Respondent knowingly practiced law while ineligible. Therefore, she violated Rules 5.5 and 8.4(c) in these matters. In the McDonald matter, respondent represented Ms. McDonald for a relatively short period of time during which she was impeded from filing the petition for divorce because she was told that Ms. McDonald owed money to the clerk of court for a previous domestic matter. As such, there does not appear to be clear and convincing evidence that respondent failed to exercise reasonable diligence in violation of Rule 1.3.

The Goff Matter — Respondent knowingly practiced law while ineligible when she represented the LeBoyds and Mr. Moore. Therefore, she violated Rules 1.16(a)(1), 5.5, 8.4(c). Respondent further violated Rules 1.15(a) and 1.15(d) by failing to place the settlement funds in her trust account and converting Dr. Goffs |9funds to her own use. Finally, respondent’s handling of the disbursement of the settlement funds demonstrated a lack of competence in violation of Rule 1.1(a).

The James Matter — Respondent knowingly practiced law while ineligible when she represented Ms. James. Therefore, she violated Rules 1.16(a)(1), 5.5, 8.4(c). Respondent acknowledged that she owes Ms. James a refund but has not yet paid same. Therefore, she violated Rules 1.5 and 1.16(d) by failing to promptly refund the unearned portion of the fee. Finally, the board determined that respondent did not violate Rule 1.1(a) because there was not clear and convincing evidence that she failed to provide competent representation.

The Weatherspoon Matter — As stated above, respondent’s testimony and the documentary evidence clearly established that she failed to promptly refund or protect the unearned fee and unused costs. Accordingly, she violated Rules 1.5(f)(5) and 1.16(d).

Additionally, the board determined that respondent failed to fulfill her MCLE requirements and failed to pay bar dues and the disciplinary assessment. She also failed to update her registration address, which resulted in her failure to receive notices of ineligibility. Accordingly, she violated Rules 1.1(b) and 1.1(c) as alleged in the formal charges. Finally, she violated Rule 8.4(a) as alleged in the formal charges by violating other Rules of Professional Conduct.

The board further determined that respondent knowingly violated duties owed to her clients and the legal profession. She caused actual harm to Dr. Goff, Ms. James, and Ms. Weatherspoon by failing to remit settlement funds or promptly refund unearned fees. She also harmed the legal profession by failing to fulfill her professional obligations and by practicing law while ineligible.

In aggravation, the board found a pattern of misconduct and multiple offenses. In mitigation, the board found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the | indisciplinary board and a cooperate attitude toward the proceedings, inexperience in the practice of law, character or reputation, and remorse. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In determining an appropriate sanction, the board focused on respondent’s most egregious misconduct — the unauthorized practice of law and the conversion of third-party funds. With respect to respondent’s unauthorized practice of law, the board determined that the appropriate sanction, based on prior jurisprudence, is at least a six-month suspension with no deferral. With respect to respondent’s conversion of funds, the board determined that this misconduct appeared to be the result of poor law office management skills as opposed to a dishonest or selfish motive. Therefore, the appropriate sanction, based on prior jurisprudence, is at least a one year and one day suspension with some portion deferred.

Under these circumstances, the board recommended that respondent be suspended from the practice of law for two years, with one year deferred. The board also recommended that, as a condition of reinstatement, respondent be required to provide restitution to Dr. Goff and Ms. James. Finally, the board recommended that, upon her reinstatement to the practice of law, respondent be required to serve two years of supervised probation, with the following conditions: 1) she shall attend the LSBA’s Ethics School and Trust Accounting School; 2) she shall cooperate with the appointed probation monitor; and 3) she shall refrain from additional violations of the Rules of Professional Conduct.

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

I, 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: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In this matter, the record supports the hearing committee’s factual findings as modified by the disciplinary board. Essentially, respondent was ineligible to practice law due to her failure to fulfill her annual professional obligations, but nevertheless, she continued to practice law during this period. Her failure to update her registration address with the LSBA resulted in her failure to receive notices of her ineligibility. Additionally, respondent converted third-party funds to her own use and failed to promptly refund unearned fees and unused costs to clients. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the board.

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 violated duties owed to her clients, the public, and the legal profession. Her misconduct caused actual harm. The baseline sanction 112for this type of misconduct is suspension. The record supports the aggravating and mitigating factors found by the board.

We find the discipline imposed in this matter should reflect the fact that respondent’s misconduct was largely the result of her inexperience in the practice of law and her poor law office management skills rather than the result of any dishonest or selfish motive. With that in mind, we find the sanction recommended by the board is reasonable. Accordingly, we will suspend respondent for a period of two years, with one year deferred, followed by two years of supervised probation with the following conditions:

1) Respondent shall make restitution to Dr. Goff and Ms. James prior to filing for reinstatement pursuant to Supreme Court Rule XIX, § 23;
2) During the probationary period following reinstatement, respondent shall attend the LSBA’s Ethics School and Trust Accounting School;
3) During the probationary period following reinstatement, respondent shall cooperate with the appointed probation monitor; and
4) During the probationary period following reinstatement, respondent shall refrain from additional violations of the Rules of Professional Conduct.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Lisa Jeanenne Thomas, Louisiana Bar Roll number 27306, be and she hereby is suspended from the practice of law for two years, with one year deferred. Following the active portion of the suspension, respondent shall successfully complete a two-year period of supervised probation, subject to the conditions set forth in this opinion. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent 11sto comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension ex-ecutory, or imposing additional discipline, as appropriate. 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.

       Chief Justice Kimball not participating in the opinion.

      . The board correctly rejected the ODC’s argument that permanent disbarment is appropriate in instances in which a lawyer practices law while ineligible to do so. See In re: Pitre, 05-0853 (La.6/17/05), 903 So.2d 1130. Further, the board was correct in its determination that respondent’s conversion of funds owed to a third-party medical provider was not intentional and therefore does not warrant permanent disbarment.