author: RAMIREZ, J.

text:
    Anthony NOTTAGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1209.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and SALTER, JJ.
   RAMIREZ, J.

Anthony Nottage appeals his judgment of conviction and sentence on the grounds that the trial court erred because, after it gave an Allen charge following a note that the jury was deadlocked, it failed to declare a mistrial. We conclude that, based on the totality of the circumstances, the trial court did not coerce the jury to return a verdict.

I. Factual Background

The State of Florida charged Nottage with numerous crimes, including attempted first-degree felony murder, kidnapping, three counts of sexual battery, attempted sexual battery, aggravated battery, burglary, child abuse, and grand theft of a motor vehicle. The jury began deliberations at 6:25 p.m. on a Friday. At the start of deliberations, the trial court informed the jury that it would “probably call it a night” at approximately 7:30 p.m. and have the jury return the following Monday, if the jury had not arrived at a verdict by that time.

During deliberations, the jury sent a note in which the jurors asked if alternate jurors could join in the deliberations “for more opinions.” At 7:30 p.m., the trial court sent the jury a note stating that “only six of you can decide the case. We are going to recess for the evening.” The trial court thereafter dismissed the jury for the evening.

Deliberations continued the following Monday at 9:30 a.m. At that point, the trial court advised counsel that, after the jurors were sent home on Friday night, one of the jurors remained behind and expressed concerns for her safety because she lived and worked in the same community as some of the individuals connected to the case. The defense moved for a mistrial. The trial court conducted an inquiry of the juror, and the juror assured the trial court that she could continue with her deliberations. The trial court denied the motion for mistrial.

At approximately 11:00 a.m. that same day, the jurors resumed deliberations. Soon thereafter, the jurors sent a note that read as follows:

First degree: Four yes; maybe, one; no, one.
Kidnapping: Four, yes; no, two.
Sexual battery: Yes, five; no, one. Aggravated battery: Yes, four; maybe, two.
Burglary, trespassing: Yes, five; no, one.

The Allen charge is contained in Florida Standard Jury Instruction (Criminal) 3.06, which reads as follows:

I have only one request of you. By law I cannot demand this of you, but I want you to go back into the jury room, then, taking your turns, tell each of the other jurors about any weaknesses of your own positions. You shall not interrupt each other’s comments or each other’s views until each of you have had a chance to talk.
After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation for your services. You may now retire to continue with your deliberations. Thank you, Ladies and Gentlemen.

After reading these instructions, the jury resumed deliberations at approximately 4:00 p.m.

Around 4:55 p.m., the jury sent another note that read as follows: “[W]e are still five to one, all the way down.” Because the judge had failed to admonish the jury not to disclose the numerical results of their votes during deliberations as instructed in the Thomas case, it now became clear that there was a lone holdout in the jury room. The trial court dismissed the jurors for the evening.

The proceedings resumed the following day at approximately 10:00 a.m. The trial court then advised counsel that one of the jurors previously had asked the bailiff for a private conversation with the judge, which the trial court did not permit.

Defense counsel moved for a mistrial based upon the note in which the jury indicated that there was a vote of five to one and the exchange that occurred between the juror who requested a private conversation with the judge. The trial court denied the motion and ordered the jury at approximately 10:50 a.m. to continue with deliberations.

A short time thereafter, the trial court received the following note from the jury:

[Juror’s name] would like to be removed from this trial. It is causing me a great deal of stress, because I cannot come to a decision on this matter. I thought I could be fan- and impartial, but I am trying very much so, but, sir, could you please excuse me?

The trial court summoned the attorneys to the courtroom. About ten minutes elapsed before all the lawyers returned to the courtroom. At that point, the jury sent out the completed verdict forms, finding Not-tage guilty as charged on all counts. Defense counsel again moved for a mistrial, arguing that the jury had been deadlocked after the jury sent the note that followed three days of deliberations. The trial court denied the motion.

II. Analysis

The United States Supreme Court set forth in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), what has come to be known as the Allen charge and thereby approved an instruction given when it appears that the jury encounters difficulty in reaching a verdict. The applicable standard of review here is whether, under the totality of circumstances, the trial court’s actions were coercive. See Thomas v. State, 748 So.2d 970, 976 (Fla.1999); Nelson v. State, 438 So.2d 1060 (Fla. 4th DCA 1983). A trial court commits error when it couches an instruction to a jury or otherwise acts in any way that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position. Thomas, 748 So.2d at 976.

Nottage argues that a new trial is warranted in reliance upon numerous cases that have reversed guilty verdicts where the jury returned verdicts after the trial court ordered the jury to continue deliberations following an Allen charge and a subsequent jury deadlock. For example, in Warren v. State, 498 So.2d 472 (Fla. 3d DCA 1986), we stated “that no juror should ever be pressured by an ‘Allen’ charge to give up his or her conscientious convictions simply for the sake of arriving at a verdict.” Id. at 477.

In Tomlinson v. State, 584 So.2d 43 (Fla. 4th DCA 1991), the judge was confronted with a similar situation as in this case. After announcing a deadlock, the judge gave the Allen charge, but the jury could still not reach a unanimous verdict. Instead of declaring a mistrial, the judge sent the jury home, with the following instruction:

I have your last note here, ‘The poll of the jury indicated that reading parts of the testimony would not affect our inability to reach a unanimous decision.’ I might add parenthetically, put a comma there, and say ‘at this time.’ It’s not unusual after a trial of this kind to have juries deliberate one, two, three, four, five, six, seven days. It’s not unusual. I know you’re discouraged that you haven’t reached a verdict yet, but I know there are still avenues for discussion and for resolving any differences that may be prevalent among some jurors. And with this in mind, with the permission of both sides, I’m going to recess the trial tonight.
... Personally, what I do when I have a problem is say a prayer for guidance. That may be an absolute last resort, because you still have to follow the law in this case, but it may help you resolve some conflict in your own minds.

Id. at 44. The jury was to resume deliberations on the following day. ' The Fourth District held that it was fundamental error for the trial court to send the jury back for deliberations after it announced a second deadlock, with what was basically a second Allen charge. Id. at 45. In our case, after giving the Allen charge, the trial judge did not instruct the jury any further, but simply sent it home.

In Rubi v. State, 952 So.2d 630 (Fla. 4th DCA 2007), the Fourth District Court of Appeal again held that the trial court committed fundamental error where the clear implication of the jury’s second note, after the Allen charge, was that the jury was unable to reach a unanimous decision. The judge then reinstructed the jury as follows:

Ladies and Gentlemen, the question I have is as follows: “One of our jurors is assuming and speculating on the evidence. Based upon his responses he is not following the law. The facts of the case is being said to not be factual and/or not conceivable.” Signed again by the foreperson.
Ladies and Gentlemen, pursuant to the instructions I previously gave you, both orally and verbally, I’m going to repeat one of those instructions. It’s under 3.10, Rules For Deliberations, Subsection 1.
You must follow the law as it is set out in these instnactions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.
Thank you very much, Ladies and Gentlemen, you may reconvene for your deliberations. Thank you.

Id. at 633. A few minutes after receiving this instruction, the jury returned a verdict, of guilty. See Washington v. State, 758 So.2d 1148, 1154 (Fla. 4th DCA 2000) (stating that “[ojnce the Allen charge is given, flexibility is lost and the trial crosses the river of no return ... [I]t is per se reversible error to repeat a deadlock jury instruction and send a jury back for further deliberations after it has announced a second deadlock”).

No other district court has adopted a per se rule mandating a mistrial after the jury is still deadlocked after an Allen charge. This Court, in Warren, 498 So.2d at 472, employs a more flexible standard to conclude that the trial court committed fundamental error. We explained as follows:

After reading Standard Jury Instruction (Criminal) 3.09, the trial judge added some additional comments which made it clear that she did not wish to try this case again, that it would cost a great deal of money to retry the case, and that she sincerely hoped that the jury could return a verdict if at all possible. Subsequently, after the jury sent back two notes stating that the jurors were hopelessly deadlocked, the trial court declined to accept this result, and eventually sent the jury home for an overnight recess after nearly eight hours of deliberation.(FN2) Prior thereto, during a colloquy with the jury in open court, the forewoman of the jury stated that “I really don’t think we are able to come close,” and the trial judge replied, “Try,” indicating that the judge wanted a verdict. When the jury returned the next morning, the trial judge again made it plain that she wanted a verdict in the cause, stating “I ... hope that it will be a productive day. Try to resolve your differences, if you possibly can. Okay. Go get 'em.”
[ (FN2.) ] The defendant urges that the overnight recess constitutes a reversible error in this case. See Livingston v. State, 458 So.2d 235 (Fla.1984). In view of the result we reach, it is unnecessary for us to address this issue.
Based on the totality of the circumstances present here, we believe the trial court’s deviations from the standard jury charge on a deadlocked jury went to the very foundations of this case such as to constitute a fundamental error. This is so because the comments complained of infected the very integrity of the fact-finding process in that the trial judge (a) stated, over and again, that she wanted a verdict in the cause, and (b) emphasized the needless cost involved in retrying the case in the event of a hung jury — both of which are strictly forbidden comments in an “Allen” charge under Florida law. By so doing, we believe the trial court may have unwittingly led one or more jurors to capitulate against his or her conscientious judgment and to return a unanimous verdict in the cause as the trial court desired. We conclude that fundamental error is thereby presented under these circumstances.

Id. at 477.

Our case is significantly different in that the trial court only gave the standard Allen charge without editorializing. It did not express any opinion, or say anything further to the jury except declare a recess and send the jury home for the evening. Thus, we are urged again to declare that an overnight recess alone, after an Allen charge, constitutes reversible error, a rule we decline to adopt. See Warren, 498 So.2d at 477 n. 2. We believe such a bright-line rule would be in conflict with Thomas, which stated that the standard of review was whether, under the totality of circumstances, the trial court’s actions were coercive. See Thomas, 748 So.2d at 976.

The circumstances in Rubi and Wairen evidently affected the holdout juror’s decision because the jury reached a verdict shortly after resuming deliberations immediately after the court’s last instruction. The totality of the circumstances in those cases, unlike the circumstances here, supported a finding of improper coercion of the jury.

We have taken into account the jury’s unsolicited disclosure of its numerical divisions when it first reported it was deadlocked and the court gave the Allen charge. As the Florida Supreme Court stated in Thomas:

Although this information was not requested by the judge, its disclosure was fraught with the danger that any further instruction to deliberate might be construed as pressure on the single “holdout” to give in. We have recently reiterated that the better practice is for the trial judge to admonish the jury at the outset of deliberations that they should not indicate how they stand during their deliberation. See Scoggins v. State, 726 So.2d 762, 767 (Fla.1999). Further, a judge, consciously or subconsciously, may be influenced by the knowledge that there is a lone holdout to insist that the jury continue deliberating in order to reach a verdict. The apparent temptation is that the single holdout may give in at any time.

Thomas, 748 So.2d at 979. Similarly, in our case, the trial judge did not request the jury’s numerical division, but neither did he admonish the jury at the outset of deliberations not to disclose the voting results. Furthermore, when the jury reported its vote tally, the trial judge still did not admonish the jury. This disclosure “was fraught with the danger that any further instruction to deliberate might be construed as pressure on the single ‘holdout’ [juror] to give in.” Id. The better practice, as the Florida Supreme Court reiterated in Thomas, is “for the trial judge to admonish the jury at the outset of deliberations that they should not indicate how they stand during their deliberations.” Id. No such admonishment occurred here. Nevertheless, because the trial court gave no further instructions to the jury after the Allen charge or in any way coerce a verdict, we conclude that the totality of the circumstances surrounding the jury’s deliberations have not rendered the verdict unreliable.

III. Conclusion

We thus conclude that, under the totality of the circumstances here, the trial court did not commit reversible error recessing the trial until the following day after giving the Allen charge.

Affirmed.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . Thomas v. State, 748 So.2d 970 (Fla.1999).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Sri K. KATNER.
    No. 2008-B-2398.
    Supreme Court of Louisiana.
    Feb. 6, 2009.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Sri K. Katner, an attorney licensed to practice law in Louisiana but currently inactive.

UNDERLYING FACTS

Counts I and II

In 2001, respondent was charged in the 24th Judicial District Court with violating La. R.S. 14:285 based on her repeated telephone calls to Maggie Pernia between September 29, 2001 and November 5, 2001 with the intent to annoy, abuse, harass, embarrass, or offend her; and violating La. R.S. 14:40.2 based on her repeatedly following or harassing Maggie Pernia between September 29, 2001 and November 5, 2001 with the intent to place her in fear of death or bodily injury.

On March 25, 2002, respondent entered a “best interest” plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to making threatening phone calls and stalking, both misdemeanors. Pursuant to the provisions of La. Code Grim. P. art. 894, the trial court sentenced respondent to serve eleven months at hard labor, with credit for time served, and placed her on active probation for two years with special conditions that included seeking substance abuse 12rehabilitation if deemed necessary by the probation department and the requirement that she have no contact with the victim or the victim’s family.

On August 15, 2002, the Jefferson Parish District Attorney’s Office filed a motion to revoke respondent’s probation for the following reasons: (1) she did not report to the probation program as directed, (2) she did not pay $231 in court costs and/or fines, (3) she did not pay the $100 commissioner’s fee, (4) she did not pay the $100 probation administration fee, and (5) she did not pay the $160 probation supervision fee. Respondent failed to appear at the hearing on the motion to revoke her probation on October 25, 2002. Consequently, the trial court ordered that an attachment be issued for respondent to be held without bond. However, the attachment was recalled on February 19, 2003.

On June 3, 2003, the Jefferson Parish District Attorney’s Office filed a second motion to revoke respondent’s probation for the following reasons: (1) she allegedly called her ex-husband, David Katner, repeatedly at both his place of employment and at his residence, threatening harm to him and his new wife, (2) she did not report to the probation program as directed, (3) she did not pay $231 in court costs and/or fines, and (4) she did not pay the $570 probation supervision fee. On July 29, 2003, respondent’s probation was revoked, and the ¿rial court sentenced her to imprisonment in the parish prison for a term of eleven months with credit for time served.

Count III

On May 16, 2004, respondent was arrested in New Orleans and charged with DWI and careless operation of a motor vehicle. Her blood alcohol level was .173%. On April 20, 2005, in proceedings in Traffic Court of the City of New Orleans, ^respondent pleaded guilty to DWI, a misdemeanor violation of La. R.S. 14:98. The court deferred sentencing on June 27, 2005, and respondent’s case was later put on hold due to the disruption of court operations in the aftermath of Hurricane Katrina.

DISCIPLINARY PROCEEDINGS:

In March 2006, the ODC filed three counts of formal charges against respondent, alleging that her conduct as set forth above violated Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent answered the formal charges, admitting the underlying misconduct but denying that her misconduct was intentional. She also requested to be heai’d in mitigation.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing in mitigation, the hearing committee found that none of the underlying facts are in dispute. Respondent has stipulated that her acts as set forth in Counts I, II, and III did occur and that she violated the Rules of Professional Conduct as alleged in the formal charges. The committee also found that respondent is “contrite and repentant about those acts.”

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

|4Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. Furthermore, respondent has admitted to the rule violations as alleged by the ODC in the formal charges.

The board determined that respondent violated duties owed to the public, the legal system, and the legal profession. Her conduct was both knowing and intentional. The victims of respondent’s harassing and stalking behavior suffered potential psychological and physical harm. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that suspension is the applicable baseline sanction. Respondent has engaged in criminal conduct that seriously adversely reflects on her fitness to practice law. She knowingly violated her probation order, which interfered with the completion of her sentence following her conviction of stalking and making threatening phone calls. Her criminal conduct and DWI also caused injury to the reputation of the legal profession.

In aggravation, the board found a pattern of misconduct, multiple offenses, substantial experience in the practice of law (admitted 1989), and illegal conduct. In mitigation, the board found the following factors: absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary 1 sboard or cooperative attitude toward the proceedings, and imposition of other penalties or sanctions.

Considering this court’s prior jurisprudence for similar misconduct, the board recommended that respondent be suspended from the practice of law for one year and one day.

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). 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.

The record in this matter reveals that respondent pled guilty to stalking and harassing an individual via telephone and that her probation was later revoked. The | ¿record also indicates that she pled guilty to DWI. As such, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

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 ease 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).

We find respondent’s conduct was knowing, and that she violated duties owed to the public, the legal system, and the legal profession. The aggravating and mitigating factors found by the disciplinary board are supported by the record. We agree with the board and the hearing committee that the baseline sanction is a period of suspension.

In addition to the cases cited by the board, we find In re: Alexander, 08-0462 (La.6/27/08), 984 So.2d 702, is instructive. In Alexander, we suspended an attorney for one year and one day after he was convicted of DWI on three occasions and his probation was revoked for his failure to attend a court-ordered substance abuse program.

Under these circumstances and in light of our ruling in Alexander, we will adopt the disciplinary board’s recommendation and suspend respondent for one year and one day. This will necessitate respondent’s formal application for reinstatement under Supreme Court Rule XIX, § 24.

| .DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Sri K. Katner, Louisiana Bar Roll number 19374, be and she hereby is suspended from the practice of law for a period of one year and one day. 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.

       Guidry, J., recused.

      . The board noted that respondent has a history of alcoholism beginning as early as 1999; however, she claims to have been sober since 2004. She has also suffered from cirrhosis of the liver since the late 1990's. She also claims to have attempted suicide twice. She underwent a shoulder replacement in 2006, due to osteonecrosis (loss of blood supply to bones, causing them to collapse). Furthermore, she entered into a LAP contract in April 2006; however, her physical problems and surgery prevented her from fully participating in LAP.

      . See In re: Robinson, 01-2772 (La.5/14/02), 819 So.2d 280 (one-year suspension, with eleven months deferred, followed by one year of probation with conditions, imposed upon an attorney who violated court orders prohibiting her from contacting her former dentist), In re: Deshotels, 98-1349 (La.10/9/98), 719 So.2d 402 (six-month suspension, with all but sixty days deferred, followed by two years of probation with conditions, imposed upon an attorney who failed to properly terminate a representation and had two DWI convictions and one disturbing the peace conviction), and In re: Lafont, 04-2064 (La.4/1/05), 898 So.2d 339 (ninety-day suspension imposed upon an attorney who failed to properly communicate with a client and was convicted of DWI).


author: VICTORY, J.

text:
    The WILLOWS v. STATE of Louisiana, DEPARTMENT OF HEALTH & HOSPITALS.
    No. 2008-OC-2357.
    Supreme Court of Louisiana.
    May 5, 2009.
    Rehearing Denied June 19, 2009.

      Waitz & Downer, Joseph L. Waitz, Hou-ma, for applicant.
    Taylor, Porter, Brooks & Phillips, Jennifer Michele Sigler, David J. Shelby, II, Baton Rouge, William A. Stark, APLC, William Anthony Stark, Houma, Carlos Alberto Romanach, Fernin Farrell Eaton, Pamela Miller Perkins, Baton Rouge, for respondent.
   VICTORY, J.

_JjWe granted this writ application to determine whether the First Circuit Court of Appeal has jurisdiction to consider an appeal of a party aggrieved by a judgment of the Nineteenth Judicial District Court in an action brought pursuant to the Louisiana Procurement Code, La. R.S. 39:1551, et seq. (the “Procurement Code”). After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and hold that the plaintiff has no right to appeal the decision of the district court under La. R.S. 39:1691(0 to the court of appeal.

FACTS AND PROCEDURAL HISTORY

This action arises from a lease dispute between the State of Louisiana and The Willows, a partnership comprised of four individuals, Robert Burns, Rodney Burns, Paul Davenport and Joseph Waitz. On April 3,1978, Robert Burns and the Louisiana Department of Health and Human Resources (“DHHR”) entered into a |2five-year lease contract for an apartment complex, The Willows, in Houma, Louisiana owned by the plaintiff. The lease provided housing for participants of the residency program at the Leonard J. Cha-bert Medical Center. The original five-year lease was renewed in 1983, and then again in 1988 on a month-to-month basis. Throughout the lease period, numerous disputes arose concerning the maintenance of the apartments, and LSU-HSC eventually decided to locate other resident housing. In December of 2004, The Division of Administration, Office of Facility Planning and Control, solicited and received bids to lease other resident housing pursuant to the competitive bid process. The bid received from Burns/Willows was deemed to be non-responsive, and on December 8, 2004, LSU-HSC sent notice of their intent to vacate the premises effective January 31, 2005, and vacated the apartments.

On April 18, 2005, The Willows filed a contract controversy complaint with the Chief Procurement Officer. Before a decision was rendered, The Willows also filed suit in the district court against DHHR on May 26, 2005 for breach of contract. On June 15, 2005, The Willows’ contract controversy complaint was denied by the Chief Procurement Officer’s designee, Jerry Jones. The Willows filed an appeal to the Commissioner of Administration, which the Commissioner considered and denied in a written opinion.

The Nineteenth Judicial District Court held a hearing on the merits of The Willows’ administrative appeal of the Commissioner of Administration’s decision on June 18, 2007. The district court affirmed the decision of the Commissioner on the |3merits and the judgment was signed on June 28, 2007. On July 30, 2007, The Willows filed a Petition for Devolutive Appeal, appealing the district court’s June 28, 2007, judgment. On August 29, 2007, the Division of Administration filed a Motion to Strike The Willows’ Petition for Devolu-tive Appeal. On October 15, 2007, the district court granted the Division’s motion and that ruling was reduced to judgment on November 9, 2007.

On October 29, 2007, The Willows filed a second Petition for Devolutive Appeal, appealing again that judgment signed on June 28, 2007, and the judgment rendered on October 15, 2007 (but signed on November 9, 2007), asserting the right to appeal based on Louisiana Code of Civil Procedure articles 2082 and 2083. On January 2, 2008, the district court granted The Willows a devolutive appeal from the judgment rendered on October 15, 2007.

On March 11, 2008, the First Circuit Court of Appeal, issued a Rule to Show Cause why The Willows’ appeal should not be dismissed. On April 29, 2008, the court of appeal dismissed The Willows’ appeal, finding that it did not have appellate jurisdiction over the district court’s November 9, 2007 judgment because it was an unap-pealable, interlocutory judgment under La. C.C.P. art. 1841. Further, the court found that it did not have appellate jurisdiction over the district court’s June 28, 2007 judgment, citing Reptiblic Fire and Cas. Ins. Co. v. State of Louisiana, Div. of Admin., Office of State Purchasing, 05-2001 (La.App. 1 Cir. 12/28/06), 952 So.2d 89, for the holding that no appeal lies from a decision of the district court under the Procurement Code. The Willows v. State of Louisiana, Department of Health and Hospitals, 08-263 (La.App. 1 Cir. 4/29/08). We granted the Willows writ application to consider this issue. The Willows v. State of Louisiana, Department of Health and Hospitals, 08-2357 (La.11/26/08), 997 So.2d 541.

LDISCUSSION

The Procurement Code, with certain exceptions, governs contracts entered into by the State for the procurement of supplies, services, or major repairs as therein defined. La. R.S. 39:1673 applies to contract conti’oversies, including breach of contract, mistake, misrepresentation, or other cause for contract modification or recision, and gives the chief procurement officer or his designee the authority to resolve any controversy, prior to the commencement of an action in court. As this case involves a lease dispute between a private party and the State, it is governed by the Procurement Code, specifically La. R.S. 39:1673. That statute provides that if the controversy is not resolved by mutual agreement, the chief procurement officer must promptly issue a decision in writing. La. R.S. 39:1673(C). That decision is final and conclusive unless the decision is fraudulent or the contractor has timely appealed administratively to the commissioner of administration in accordance with La. R.S. 39:1685. La. R.S. 39:1673(E).

La. R.S. 39:1685 provides that the contractor must file its appeal with the commissioner within 14 days of the receipt of the decision under La. R.S. 39:1673(C) and that the commissioner must decide the controversy within 14 days. La. R.S. 39:1685(B)(C). This decision shall be final and conclusive unless fraudulent or unless the contractor has timely appealed an adverse decision of the commissioner to the court in accordance with La. R.S. 39:1691(C). At the time this contract was entered into, La. R.S. 39:1691(0 provided:

Actions by or against the state in connection with contracts
C. Actions under contracts or for breach of contract. The Nineteenth Judicial District Court shall have exclusive venue over an action between the state and a contractor who contracts with the state, for any cause of action which arises under or by virtue of the contract, |,whether the action is on the contract or for a breach of the contract or whether the action is for declaratory, injunctive, or other equitable relief.

La. R.S. 39:1691. The discrete issue presented in this case is whether a party aggrieved by a decision rendered by the Nineteenth Judicial District Court under La. R.S. 39:1691(C) has a right of appeal to the First Circuit Court of Appeal.

Generally, the concept of allocation of jurisdiction in civil actions is trial in the district court, with the constitutional right to appeal to the court of appeal, La. Const, art. V, § 10, and to seek discretionary review by the Supreme Court, La. Const. art. V, § 5. Alex v. Rayne Concrete Service, 05-1457 (La.1/26/07), 951 So.2d 138, 144 (citing Frank L. Maraist and Harry T. Lemmon, 1 Louisiana Civil Law Treatise: Civil Procedure (West 1999)). An appeal “is the exercise of the right of a party to have a judgment of the trial court reversed, modified, set aside or revised by an appellate court.” La. C.C.P. art.2082. A pai'ty may appeal (1) from a final judgment in actions in which appeals are given by law; (2) an interlocutory judgment only when expressly provided by law; and (3) from a judgment reformed in accordance with an additur or remittitur. La. C.C.P. art.2083. A final judgment in a civil case is generally appealable to the intermediate appellate court as a matter of right. Alex v. Rayne Concrete Service, supra at 144.

|BLa. Const. art. V, § 16 provides that “[a] district court shall have appellate jurisdiction as provided by law.” This Court has held that judicial review of the decision of an administrative agency is an exercise of a court’s appellate jurisdiction pursuant to La. Const, art. V, § 16(B), rather than a district court’s original jurisdiction under La. Const. art. V, § 16(A). Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-185 (La.10/16/01), 797 So.2d 656, 660; In re American Waste & Pollution Control, 588 So.2d 367, 371 (La.1991). This Court reasoned that “original jurisdiction refers to judicial adjudications in the first instance and ‘designates the adjudicative tribunal in which the initial adjudication is made;’ it does not refer to judicial review of decisions of administrative agencies.” Id. (cites omitted). Further, “for the purpose of judicial review of administrative action, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative decisions as provided by the legislature or constitution.” Metro Riverboat, supra (citing Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 203 (La.1987)). “Additionally, the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies.” Id.

Thus, it is clear that the district court is exercising its appellate jurisdiction when hearing cases under La. R.S. 39:1691(0 and La. R.S. 39:1691 neither grants nor prohibits an appeal from the district court’s decision. Because of the absence of any language granting or prohibiting an appeal to the First Circuit and because an appeal would ordinarily be allowed under the Code of Civil Procedure from a final judgment of a district court, we do not find this statute to be clear and unambiguous; therefore, we will look to the purpose of the law and the context in which the words of the statute occur, and also to the legislative history to determine the legislature’s 17intent. La. C.C. arts. 9, 10. The version of La. R.S. 39:1691(0 that applies to this action was enacted by Acts 1979, No. 715, § 1. There is no indication from the legislative history of that Act whether the legislators intended that an appeal be allowed to the First Circuit. However, the history leading up to the 2008 amendment to that statute provides guidance which we can use to interpret the statute.

In 2006, the First Circuit decided Republic Fire, supra. In Republic Fire, the court held that an appeal of a district court decision under La. R.S. 39:1691(A) was not allowed based on the following: (1) the statute itself did not provide for an appeal and according to Metro Riverboat, Ass., Inc., supra, when an administrative agency statute establishes a specific procedure for judicial review of an agency’s action, a litigant can invoke the reviewing court’s jurisdiction only by following the statutorily prescribed procedure, unless there can be found within the act a genuine legislative intent to authorize judicial review by other means; (2) the Louisiana Administrative Procedure Act, which is intended to fill gaps in other laws governing the specific agency, only allows an appeal when there is a “final decision or order in an adjudication proceeding” as set forth in La. R.S. 49:964(A)(1) and there is no adjudication under La. R.S. 39:1691 (A) because hearing and notice are not required under that statute; and (3) the matter before the district court was not transformed into an ordinary proceeding just because an injunction was sought in the district court. 952 So.2d at 95-97.

In response to this opinion, the Division of Administration supported Senate Bill 574 in the 2008 Legislative Session which, by Acts 2008, No. 789, § 1, amended La. R.S. 39:1691 to add Paragraph (E), which now provides as follows:

Writs or appeals; district court decisions. Any party aggrieved by a final judgment or interlocutory order or ruling of the Nineteenth Judicial District Court may appeal or seek review thereof, as the case may be, to | sthe Court of Appeal, First Circuit or the Supreme Court of Louisiana, as otherwise permitted in civil cases by law and the constitution.

Section 2 of Acts 2008, No. 789 added the following: “[tjhis Act shall not apply to any claim or controversy arising out of any contract or agreement executed prior to August 1, 2008.”

When testifying before Senate Committee Judiciary A on April 15, 2008, representatives of the Division of Administration presented Senate Bill 574, which only contained the language in Paragraph (E) of the statute to provide for an appeal (with no effective date). The Division’s representatives testified that prior to Republic Fire, appeals had routinely been allowed to the First Circuit and it had always been the Division’s belief that such appeals were allowed. They further testified that appeals to the First Circuit should be allowed because of the need for uniformity in Procurement Code issues, which is lacking when 12 different district court judges are reaching different outcomes. The Senate Bill passed from the committee favorably.

On June 5, 2008, the Division’s representatives testified before the House Committee on Judiciary in support of Senate Bill 574. The Division repeated the reasons for supporting the bill, and, for the first time, supported an amendment which provided that the Act would not apply to claims or controversies arising out of contracts executed before January 1, 2007. When asked why this amendment was necessary, the Division’s representatives stated that it was not case specific, but was a recent compromise in order not to effect older cases that were “in the pipeline” and had been litigated and the parties did not want the right to appeal to apply to their cases. The Division’s representatives indicated that prior to this recent compromise, it had envisioned the statute would be retroactive, as it is a procedural statute. After this discussion, Representative Con-nick put forth an amendment, which was adopted |9and which contained the language that eventually appeared in Acts 2008, No. 789, § 2, providing that the “Act would not apply to any claim or controversy arising out of any contract or agreement executed prior to August 1, 2008.”

In light of this discussion which resulted in the addition of language making the statute prospective only, we find that the legislature did not intend that the Procurement Code provide a right of appeal relative to any claims or controversies arising out of any contract executed prior to August 1, 2008, either before the 2008 amendment or afterward. For if the original provisions of La. R.S. 39:1691 provided a right of appeal, it would have been entirely illogical to put in an amendment allowing an appeal but then limiting its effect to cases or controversies arising out of contracts entered into after August 1, 2008. In addition, the language providing prospective application from August 1, 2008 that was added to Acts 2008, No. 789 would be meaningless if the existing statute already allowed an appeal for those claims. While it is unusual to see the legislature make a procedural, and thus retroactive, statute prospective only, it is not forbidden.

Further, although La. R.S. 39:1553 provides that “[t]o the extent not inconsistent with the particular provisions of the Chapter, the principles of Louisiana law shall supplement its provisions,” and an appeal would be allowed under La. C.C.P. arts.2082 and 2083, an appeal to the court of appeal is not allowed in this case. Pursuant to Metro Riverboat, supra, “the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies.” 797 So.2d at 660. The exclusive means of obtaining judicial review under La. R.S. 39:1691 is an appeal to the Nineteenth Judicial District Court. Certainly, the First Circuit can grant a writ application in cases decided under La. R.S. 39:1691 | ipprior to its amendment in 2008, and if the Nineteenth Judicial District Court is indeed issuing conflicting decisions, the First Circuit may decide to exercise its supervisory jurisdiction.

In addition, at the district court, the plaintiff argued that, unlike a case decided under La. R.S. 39:1691(A) (the statute involved in Republic Fire, supra), a case decided under La. R.S. 39:1691(0 does involve an “adjudication” under the Louisiana Administrative Procedure Act (“LAPA”), and therefore an appeal is permitted. La. R.S. 49:965 provides that under the LAPA, “[a]n aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal [and that] [t]he appeal shall be taken as in other civil cases.” However, “the LAPA was not intended to supersede the more specific provisions of other administrative acts.” Metro Riverboat, supra at 662; Corbello v. Sutton, 446 So.2d 301, 303 (La.1984). “Rather, it was intended to create procedures were none exist.” Id. Under the Procurement Code, a specific hearing and review process is provided for; thus, the review provisions of the LAPA cannot su-percede them.

Lastly, plaintiff appears now to argue that its constitutional rights are being denied because it cannot appeal to the First Circuit. “It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below.” Vallo v. Gayle Oil Co., 94-1238, (La.11/30/94), 646 So.2d 859, 864-65. Plaintiff had an opportunity to make this assertion when the trial court granted LSU-HSC’s motion to strike plaintiffs de-volutive appeal on November 9, 2007 and did not do so. We note that plaintiff has l^not pointed to any specific constitutional provision that has been violated in this case and we can not discern any constitutional basis for such a challenge.

DECREE

For the reasons stated herein, the judgment of the court of appeal is affirmed. AFFIRMED.

      . Although the lease was entered into between Robert Burns, Jr. and the State of Louisiana, Department of Health and Human Resources, in an "Affidavit Attesting That a Public Lease is Being Contemplated” attached to the lease, the parties to the lease were listed as Robert A. Burns, Jr., Henry T. Burns, and Joe Waitz. The defendants have argued that The Willows is not the proper party to bring this contract dispute claim; however, we did not grant this writ to consider this claim or the merits of the underlying claim.

      . In 1991, the legislature transferred DHHR hospitals to the Louisiana Health Care Authority (LHCA). In 1997, these hospitals were transferred from LHCA to the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU”). The LSU Health Sciences Center-New Orleans ("LSU-HSC”) was made responsible for several hospitals, including the Leonard J. Chabert Medical Center. La. R.S. 17:1519.2.

      . On November 14, 2005, The Willows filed a "First Supplemental and Amended Petition to Add Defendants” in the district court, adding as defendants the Board of Supervisors of LSU, the State of Louisiana, through the Division of Administration; Jerry Jones, and Patrick Gibbs. The individual defendants were later dismissed.

      . On October 16, 2006, the district court rejected The Willows' request for a trial de novo, ruling that the matter was before it on judicial review, rather than original hearing.

      . La. Const, art. 5, § 10(A) provides:
      (A) Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, including direct review of administrative agency determinations in workers’ compensation matters as heretofore or hereafter provided by law, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article. It has supervisory jurisdiction over cases which arise within its circuit.

      . La. Const, art. 5, § 5(A) provides in part:
      (A) Supervisory Jurisdiction; Rule-Making Power; Assignment of Judges. The supreme court has general supervisory jurisdiction over all other courts....

      . More recently, this Court explained that the constitutional challenge must be specifically pleaded and the grounds of the claim particularized. Taylor v. Clement, 06-2518 (La.2/2/07) 947 So.2d 721; see generally Frank L. Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 14.5, pp. 523-525 (2nd ed.2008).


text:
    In re Vicki Kemp CRUSE.
    No. 2009-B-0028.
    Supreme Court of Louisiana.
    June 26, 2009.

      Alyson Renee McCord, for Applicant.
    Vicki Kemp Cruse, Delhi, for Respondent.
   I,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Vicki Kemp Cruse, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint motion of the parties filed in August 2007. In re: Cruse, 07-1716 (La.8/22/07), 963 So.2d 377.

FORMAL CHARGES

The Weems Matter

In July 2005, Michael Weems retained respondent to represent him in a child custody and visitation matter. On several occasions thereafter, respondent advised Mr. Weems that court dates were scheduled but then had to be continued. Mr. Weems finally contacted the clerk’s office and was advised that nothing was pending-in his case. Mr. Weems confronted respondent, who returned his file to him and refunded the entire fee he paid.

The Brent Matter

In March 2003, Stacy Brent paid respondent $850 to handle an adoption. Before respondent completed the matter, Ms. Brent decided that she no longer wished | gto pursue the adoption, and requested that respondent apply the $850 to a divorce action she intended to pursue. In September 2005, Ms. Brent met with respondent and signed a divorce petition. In December 2005, both respondent and Ms. Brent attended a court date regarding preliminary matters in the divorce proceeding. Thereafter, Ms. Brent had difficulty reaching respondent to discuss the divorce. In September 2006, Ms. Brent filed a complaint against respondent with the ODC.

The McAhpin Matter

In March 2004, Charles McAlpin paid respondent $3,000 to handle a succession matter. Respondent did some work in the matter, but approximately two years later, Mr. McAlpin retained new counsel, Orlando N. Hamilton, Jr., to handle the succession case. Mr. Hamilton requested that respondent return the file, provide an accounting, and refund the unearned portion of Mr. McAlpin’s fee. Respondent failed to do so, and as a result, Mr. Hamilton issued a subpoena to compel respondent’s appearance in court. Respondent appeared in court on September 11, 2006, produced the file, and refunded $2,700 to Mr. McAlpin ($2,000 in the form of a check and $700 in cash). Mr. McAlpin endorsed the check over to Mr. Hamilton to compensate him for legal expenses and costs that had accrued. However, respondent’s check was written on the wrong bank account, and it was subsequently dishonored for insufficient funds. Respondent failed to remit funds to reimburse Mr. Hamilton, despite repeated requests. Consequently, the matter was submitted to the district attorney’s office for prosecution and collection. Respondent pled guilty tojsissuing a worthless check and deposited $2,902 into the registry of the court on March 7, 2007.

The Guin Matter

In April 2005, LaDonna Guin paid respondent $1,675 to handle a divorce. Although respondent did some work in the matter, she failed to finalize the divorce and failed to communicate with Ms. Guin regarding the matter. Respondent did not return Ms. Guin’s file to her or refund the unearned portion of her fee, despite repeated requests from Ms. Guin.

In November 2006, Ms. Guin filed a complaint against respondent with the ODC. Respondent failed to file a written response, necessitating the issuance of a subpoena to obtain her sworn statement.

Respondent provided a sworn statement to the ODC on March 29, 2007. During her statement, respondent informed the ODC that she suffers from a severe thyroid condition. Respondent testified that her condition has caused extreme physical and emotional difficulties, including depression, sleeplessness, uncontrollable crying, inability to concentrate, and memory loss. Respondent also suffers from severe migraine headaches. As a result of these problems, in 2005, respondent began to reduce her client base. She finally closed her law office in March 2006. Respondent explained that most of her difficulties with her clients arose during this period when she “was fixing to have to face the fact that I was gonna have to close my practice.”

^DISCIPLINARY PROCEEDINGS

In November 2007, the ODC filed formal charges against respondent, alleging that her conduct as set forth above violated numerous provisions of the Rules of Professional Conduct, including Rules 1.1 (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (failure to timely return an unearned/unreasonable fee), 1.16(a)(2) (failure to withdraw from the representation of a client when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client), 1.16(a)(3) (failure to withdraw from the representation of a client upon being discharged), 1.16(d) (obligations upon termination of the representation), 2.1 (a lawyer shall exercise independent professional judgment and render candid advice in representing a client), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(b) (a lawyer shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

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 1 Bthe 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 the factual allegations of the formal charges are deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. In aggravation, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, 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, and substantial experience in the practice of law (admitted 1989). The only mitigating factor found by the committee is the absence of a prior disciplinary record.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for three years.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous, with a few exceptions as noted with respect to the rule violations.

|fiIn the Weems matter, the board found that respondent violated the Rules of Professional Conduct as charged, except that she did not fail to refund an unearned fee. Mr. Weems stated that respondent refunded the entire fee the same day he demanded the refund; thus, respondent acted promptly in refunding the unearned fee.

In the Brent matter, the board found that respondent generally violated the Rules of Professional Conduct as charged. However, the board found respondent did not fail to refund an unearned fee. Respondent’s detailed accounting showed that she earned $1,758.72 on Ms. Brent’s file while Ms. Brent only paid her $850. Furthermore, the ODC made no specific allegation or offered any evidence that respondent charged an excessive fee. Moreover, although respondent was charged in this count with violations of Rules 8.1(a) and 8.4(c), the board determined that respondent did not violate these rules because there is no evidence or factual allegations that she made a false statement in connection with the disciplinary investigation or otherwise engaged in dishonesty, fraud, deceit, or misrepresentation.

In the McAlpin and Guin matters, the board found that respondent violated the Rules of Professional Conduct as charged.

The board determined that respondent knowingly violated duties owed to her clients, the public, the legal system, and the legal profession. Respondent harmed her clients by prolonging their legal matters and withholding unearned legal fees, which were needed to retain other counsel. Furthermore, Ms. Guin has never obtained a final judgment of divorce because of respondent’s neglect. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

|7The board found the following aggravating factors present: a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law. The board determined that the only mitigating factor supported by the record is the absence of a prior disciplinary record. However, the board noted that respondent appeared at oral argument before the board panel and offered argument in mitigation. Respondent admitted to the misconduct but stated that it occurred during a period of time in which she was experiencing medical problems. She attributed the misconduct to her health problems and stated that she started to close her law practice in January 2006, before any complaints were filed, because of those health problems. Respondent appeared to be truly remorseful and regretted not closing her law practice before her health problems interfered. Furthermore, she stated that she does not intend to return to the practice of law until she is healthy. Therefore, the board took respondent’s argument into consideration when deciding the appropriate sanction.

In determining an appropriate sanction, the board also relied upon In re: Small, 03-1736 (La.12/3/03), 863 So.2d 500, and In re: Ramsey, 07-0006 (La.3/16/07), 951 So.2d 1077. In Small, this court suspended an attorney for one year and one day for four counts of misconduct that involved neglecting legal matters, failing to communicate with clients, commingling client funds, failing to properly withdraw from legal matters, and failing to account for or refund unearned fees, which caused serious to egregious harm to the attorney’s clients. Numerous aggravating factors were present and the only mitigating factor was the attorney’s personal and emotional problems. In Ramsey, this court suspended an attorney for one year and one day for six counts of misconduct that involved failing to communicate with clients, failing |sto refund an excessive fee, failing to provide accountings and/or refund unearned fees, failing to return client files, practicing law while ineligible, and failing to cooperate with the ODC in its investigation. Numerous aggravating factors were present and the only mitigating factor was the absence of a prior disciplinary record.

The board determined that the instant matter seems to be consistent with Small and Ramsey, except that those cases involve slightly more egregious conduct since the attorneys refused to recognize the wrongful nature of their conduct. In the instant matter, respondent has admitted her misconduct. Furthermore, the record supports respondent’s argument that the misconduct was confined to 2005 and 2006. Finally, although respondent has not put on evidence of personal and emotional problems, she has taken the extra step of closing her law office until her health allows her to adequately represent clients.

Under these circumstances, the board recommended that respondent be suspended from the practice of law for one year and one day and pay any restitution still owed to her former clients. The board also recommended that respondent be required to address her health issues when and if she applies for reinstatement.

The ODC filed an objection to the disciplinary board’s recommendation. Pursuant to Supreme Court Rule XIX, § 11(G)(1)(b), the case was scheduled on our docket. However, respondent failed to file a brief prior to oral argument. The ODC then filed a motion seeking to waive oral argument. We granted the motion and now consider the case based upon the record.

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 _[c¡independent i*eview .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).

The deemed admitted facts indicate that respondent neglected legal matters, failed to communicate with her clients, failed to return files to her clients at the conclusion of the representation and failed to refund unearned fees, and failed to cooperate with the ODC in its investigation. Respondent also pleaded guilty to a misdemeanor charge of issuing a worthless check. Respondent has 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).

We find that respondent’s conduct was more negligent and knowing than intentional. She violated duties owed to her clients, the legal system, and the legal profession, causing actual harm. The baseline sanction for this type of misconduct is a period of suspension.

Aggravating factors include a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the 110practice of law. In mitigation, we recognize personal or emotional problems (respondent’s medical condition) and remorse.

Under all the circumstances of this case, we find the one year and one day suspension recommended by the board is appropriate. We will also order respondent to pay any restitution still owed to her clients.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that Vicki Kemp Cruse, Louisiana Bar Roll number 19531, be and she hereby is suspended from the practice of law for one year and one day, retroactive to her August 22, 2007 interim suspension. It is further ordered that respondent shall make restitution of any unearned fees owed to her clients subject of the formal charges. 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.

       Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.

      . Respondent had a client trust account as well as a separate escrow account that she maintained in connection with her work as an agent for a title insurance company. The check to Mr. McAlpin was mistakenly written on the real estate escrow account instead of the client trust account.

      . By agreement with the district attorney's office, respondent pled guilty to a misdemean- or offense.

      .Respondent executed a HIPAA-compliant medical release which authorized the ODC to obtain her medical records; however, respondent’s physician subsequently refused to release the records, claiming that respondent orally instructed her not to do so.

      . The board did note that in charging respondent with failing to refund an unearned fee, the ODC erroneously cited Rule 1.5(a)(4) instead of Rule 1.5(0(5). Regardless, the board found that respondent did fail to timely refund an unearned fee in the McAlpin and Guin matters.


author:
VICTORY, J.
     JOHNSON, J.,

text:
    STATE of Louisiana v. Demarcus Kentrell HOLLINS.
    No. 2008-K-1033.
    Supreme Court of Louisiana.
    June 26, 2009.

      Samuel D’Aquilla, District Attorney, Amanda Murray McClung, Kathryn Elizabeth Jones, Assistant District Attorneys, for Applicant.
    Benn Hamilton, Baton Rouge, for Respondent.
   VICTORY, J.

_J_¡We granted this writ application to determine whether the trial court erred in failing to give a requested special jury instruction on accomplice testimony, and if so, whether this failure constitutes reversible error. After reviewing the record and the applicable law, we reverse the judgment of the court of appeal and find that the trial court did not err in refusing to give the special jury instruction.

FACTS AND PROCEDURAL HISTORY

On October 24, 2005, at approximately 2:00 p.m., defendant DeMarcus Hollins (“defendant”) and his friend Jonathan Fields (“Fields”) were driving southbound on Highway 19 in Slaughter, Louisiana, when Officer Dwayne Wheeler observed that neither defendant nor his passenger, Fields, were wearing seat belts and he initiated a traffic stop on that basis. Officer Wheeler recognized defendant from previous traffic stops and narcotics violations. After defendant’s vehicle was pulled over and without being requested to do so, defendant exited the vehicle and stepped to the back of the vehicle to speak with the officer. Officer Wheeler noticed defendant and Fields repeatedly exchanging looks at one another. The officer asked for defendant’s | gdriver’s license and defendant began fumbling in his front and back pockets as his eyes darted back and forth to his own vehicle and to Fields. Defendant’s hands were shaking and he was trembling and fidgety. Because he ¡considered this behavior to be suspicious, Officer Wheeler inquired if defendant had any weapons or narcotics on his person or in the vehicle and obtained defendant’s consent to search the vehicle. He asked defendant to turn around and place his hands on the rear of his vehicle so he could pat him down. Instead of putting his hands on the rear of the vehicle, which was close enough so that he would not have to move, defendant walked left toward the driver’s side of the vehicle, even though the passenger side was closer, and looked back and forth at the officer and into the vehicle at Fields. As he began patting defendant down, Fields opened the passenger door and took off running. Officer Wheeler gave chase but was unable to apprehend Fields. Defendant was arrested on the traffic violations and transported to the police station. No drugs were found on defendant’s person or in his vehicle.

Approximately an hour later, another officer apprehended Fields about a mile from the scene of the traffic stop and he was taken to the police station. Fields was initially reluctant to talk to police, but eventually admitted to Officer Kenny Stewart, with whom he was acquainted, that when defendant saw that he was about to be stopped by the police, he handed Fields a plastic bag containing drugs, which Fields placed in his boxers, and told him that if the police started to search him, that Fields was to run. Fields was surprised when defendant handed him the bag and stated he did not know what it was. Fields told the officer that he dropped the bag in an area behind a certain building, and the officers recovered the bag from that location. Subsequent testing revealed the bag contained 4.22 grams of cocaine.

| .¡The State charged defendant with simple possession of cocaine. Fields was never charged with any crime stemming from this incident. The trial court denied defendant’s motion to suppress and the State proceeded to trial on December 11, 2006. The police officers and Field testified on behalf of the State; defendant did not testify. At the conclusion of the testimony, defendant requested a special jury instruction be given on accomplice testimony. The trial judge refused to give the instruction, finding that it was not necessary because Fields was not an accomplice and his testimony was corroborated by other evidence. The jury found defendant guilty as charged and he was sentenced to five years imprisonment at hard labor.

The court of appeal reversed defendant’s conviction, vacated his sentence and remanded for a new trial, finding that the trial court’s failure to give the accomplice jury instruction was reversible error. State v. Hollins, 07-1569 (La.App. 1 Cir. 4/9/08) (unpublished). We granted the State’s writ application to consider whether the trial court committed reversible error in failing to give the accomplice instruction in this case. State v. Hollins, 08-1033 (La.1/30/09), 999 So.2d 766.

DISCUSSION

La.C.Cr.P. art. 802 requires the trial court to charge the jury as to the law applicable to the case. Under La.C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. The special charge need not be given if it is included in the general charge or in another special charge to be given. State v. Segers, 355 So.2d 238, 244 (La.1978). Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Marse, 365 So.2d 1319, 1322-24 (La.1978);4 La.C.Cr.P. art. 921.

In Louisiana, as a general principle of law, a conviction may be sustained on the uncorroborated testimony of a purported accomplice, although the jury should be instructed to treat such testimony with great caution. State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, 928, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248; State v. May, 339 So.2d 764, 775 (La.1976); State v. Matassa, 222 La. 363, 62 So.2d 609 (1952). However, where there is material corroboration of the accomplice’s testimony, the cautionary accomplice instruction is not required. State v. Schaffner, 398 So.2d 1032, 1035 (La.1981); State v. Murray, 375 So.2d 80 (La.1979) (citing U.S. v. Lee, 506 F.2d 111 (D.C.Cir.1974); U.S. v. Clark, 480 F.2d 51249 (5th Cir.(Ga.) 1973); Davis v. U.S., 411 F.2d 1126 (5th Cir.(Tex.) 1969); U.S. v. Cianchetti, 315 F.2d 584 (2nd Cir.(Conn.) 1963)). Whether to give the accomplice instruction is within the sound discretion of the trial court. Schaffuer, supra at 1035.

In this case, defendant’s conviction was sustained on the testimony of Fields. While the jury was given the general charge relating to the credibility of witnesses, it was not given a special charge relating to accomplice testimony. To determine whether the trial court abused its discretion in refusing to give the special jury charge, we must first consider whether Fields was an “accomplice,” and, if so, whether his testimony was uncorroborated. The is no statutory definition of “accomplice” in our codes or statutes. In Louisiana, parties to a crime are either principals, La. R.S. 14:24, or accessories after the fact. La. R.S. 14:26. This Court first defined an accomplice in 1945 in connection with accomplice testimony as “one who is associated with others in the commission of a crime.” State v. Gunter, 208 La. 694, 23 So.2d 305, 311 (1945). This fits within the definition of a principal under La. R.S. 14:24, which defines a principal as “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime ...” As we further stated in Gunter, a person can be an accomplice regardless of whether or not he has been convicted of or pled guilty to the crime. Gunter, supra at 311.

| BIn this case, Fields was clearly an accomplice with the defendant in possessing the drugs. While Fields may not have known the defendant possessed drugs pri- or to the time they were pulled over by the police and defendant gave him the drugs, he surely became a principal when he took the drugs and escaped with the drugs to avoid either of them being caught with the drugs. As found by the court of appeal, it is irrelevant that Fields was never arrested or charged with a crime arising from this incident, and his own testimony associates him with the defendant in the commission of the crime of possession of cocaine. The trial court’s finding that Fields was not an accomplice was erroneous.

However, the trial court’s finding that Fields’ testimony was corroborated was not an abuse of discretion. An accomplice’s testimony is corroborated “if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation.” Schaffuer, supra at 1035; see also State v. Washington, 407 So.2d 1138, 1147 (La.1981); Murray, supra at 88-89.

The State argues that the defendant’s suspicious activity after he was pulled over corroborates Fields’ testimony that defendant gave him the bag of cocaine and told him to run if he was searched. Defendant did several things which indicate that this story is true. First, defendant exited the vehicle and stepped to the back of the vehicle to speak with the office!*, even though he was not requested to do so, which separated him from the drugs. Second, the defendant and Fields repeatedly exchanged looks at one another. When the officer asked for defendant’s driver’s license, defendant began fumbling in his front and back pockets as his eyes darted back and forth to his own vehicle and to Fields, and his hands were shaking and he was trembling and fidgety. After he gave his consent to search the vehicle and was 17askecl by the officer to turn around and place his hands on the rear of the vehicle, defendant instead walked left toward the driver’s side of the vehicle, even though the passenger side was closer, and looked back and forth at the officer and into the vehicle at Fields. By situating himself and the officer on the driver’s side of the vehicle, he gave Fields the opportunity to open the passenger door and run away with the drugs. Finally, after Fields was apprehended and taken to the police station, he told the police his story, including where to find the drugs, even though if he had said nothing, the police would never have known there were drugs involved at all. If the drugs had been Fields all along, presumably he would not have told the police about them and where they were. Defendant’s furtive and purposeful actions after being stopped by the police, along with the fact that Fields told the police about the drugs, corroborates his story that defendant gave him the drugs and told him to run away with them. Therefore, because Fields’s testimony was corroborated, the accomplice instruction was not required.

CONCLUSION

Under Louisiana law, a conviction may be sustained on the uncorroborated testimony of a purported accomplice. However, where an accomplice’s testimony is uncorroborated, the jury must be given a special instruction to treat such testimony with great caution. In this case, defendant was convicted upon Field’s testimony. However, although Field’s was an accomplice, his testimony was not uncorroborated. As detailed in this opinion, his suspicious actions upon being pulled over by Officer Wheeler confirms material points in Field’s testimony. Because Field’s testimony was corroborated, the general instruction sufficed to apprise the jury of the proper weight to be given his testimony.

IsDECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and the defendant’s conviction and sentence are reinstated.

REVERSED.

JOHNSON, Justice dissents and assigns reasons.

JOHNSON, J.,

Dissents and assigns reasons.

|,I would affirm the reversal of defendant’s conviction and sentence for the reasons assigned by the First Circuit Court of Appeal.

       Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.

      . This fact was not told to the jury.

      . The wording of the jury instruction on accomplice testimony requested by defendant is not in the record. However, this Court has approved the following instruction delivered by a trial judge:
      An accomplice is defined as one who is associated with another in the commission of a crime and an accomplice is a competent witness, either for the State or for the defendant. Whether the accomplice has been convicted or not, whether he has pleaded guilty or nol [prosequied] or dismissal has been entered into, or whether he be joined in the same Bill of Information or indictment with the person on trial or not, corroboration is desirable, but it is not always indispens[a]ble. The jury may convict on his uncorroborated testimony. And while it is not the rule of law, it is rather the rule of our experience in dealing with that class of testimony that while you may convict upon the uncorroborated testimony of an accomplice, still you should act upon his testimony with great caution, subject to careful examination of the weight of the other evidence in the case. And you are not to convict upon such testimony alone unless satisfied, after a great careful examination of its truth, that you feel you can safely rely on it. What the law means by corroboration of the testimony of an accomplice is not merely the corroboration of the accomplice's narrative and the mere details of how the crime was committed or the crime charged was committed, but some real and independent corroboration intending to implicate the defendant in the commission of the offense charged. It is not sufficient to corroborate an accomplice as to the facts of the case. Generally, he should be corroborated as to some material fact which tends to prove that the accused was connected with the crime that’s charged.

        May, supra at. 775.

      . Murray cited the following observation made in United States v. Lee:

      When there is no corroboration, the problem of perjury looms large and warrants a judicial exposition of the frailties of accomplice testimony. When the accomplice’s testimony is corroborated in material degree, there is no significant special problem of perjury; the persisting problem of perjury in fact in the specific case is like that which besets trials generally. The jury has the benefit of the general instruction on credibility, of its own awareness of the witness' criminality, and of the latitude given defense counsel to explore the witness' possible interest, both by eliciting facts and by discourse in argument. If now the judge gives a special warning he may be unduly tilting the jury's consideration.

      . The jury was charged as follows:
      In evaluating the testimony of a witness you may consider his or her ability and opportunity and remember the matter about which he or she testified, his or her manner while testifying, and any reason he or she may have for testifying in favor of or against the State or the defendant and the extent to which the testimony is supported or contradicted by other evideirce.